Provisions Relating to Securitization. (a) For so long as an initial Holder or an Affiliate of an initial Holder (an “Initial Holder”) is the owner of a Note, such Initial Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of the Note or Notes held by such Initial Holder among other New Notes; reducing the Interest Rates of such New Notes or severing the Note held by such Initial Holder into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such Note, provided that (i) the aggregate principal balance of such New Notes following such amendments is no greater than the principal balance of the related Note prior to such amendments, (ii) all New Notes continue to have the same interest rate as the related Note prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder holding the New Notes shall notify the other Holders and the parties to the PSAs in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of such Note, (2) if any Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. (b) Each Lead Note Holder shall cause the Lead Securitization Servicing Agreement to provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof): (i) the applicable Master Servicer and Trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made within two Business Days of making such advance; and (ii) if the Master Servicer determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide the servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, within 2 Business Days after such determination was made. (iii) the Master Servicer shall remit all payments received (or advanced) with respect to each Non-Lead Note, net of the Servicing Fee payable with respect to such Note and any other Excluded Amount, to the Holder of such Note on or prior to the related Master Servicer Remittance Date (as defined herein); (iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC Investor Reporting Package) pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advances; (v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party; (vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard; (vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party; (viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs as the parties to the applicable Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law, and (2) to the extent applicable, to cooperate with any depositor in an other Securitization in responding to comments from the Commission regarding any
Appears in 4 contracts
Samples: Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-Gc36), Co Lender Agreement (COMM 2016-Ccre28 Mortgage Trust), Co Lender Agreement (CFCRE 2016-C3 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an initial Holder GACC or an Affiliate of an initial Holder GACC (an the “Initial Note A-2-2 Holder”) is the owner of a NoteNote A-2-2, such the Initial Note A-2-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2-2 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-2-2 among other New A-2-2 Notes; reducing the Interest Rates of such New A-2-2 Notes or severing the Note held by such Initial Holder A-2-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-2-2, provided that (i) the aggregate principal balance of such the New A-2-2 Notes following such amendments is no greater than the principal balance of the related Note A-2-2 prior to such amendments, (ii) all New A-2-2 Notes continue to have the same or a lower interest rate as the related Note A-2-2 prior to such amendments, (iii) all New A-2-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2-2 Holder holding the New A-2-2 Notes shall notify the other Holders and the parties to the PSAs Note A-1 PSA and the Note A-2-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of such NoteNote A-2-2, (2) if any Note A-2-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) Each Lead For so long as GACC or an Affiliate of GACC (the “Initial Note A-3-1 Holder”) is the owner of Note A-3-1, the Initial Note A-3-1 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-3-1 Notes”) reallocating the principal of Note A-3-1 among other New A-3-1 Notes; reducing the Interest Rates of such New A-3-1 Notes or severing the Note A-3-1 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-3-1, provided that (i) the aggregate principal balance of the New A-3-1 Notes following such amendments is no greater than the principal balance of Note A-3-1 prior to such amendments, (ii) all New A-3-1 Notes continue to have the same or a lower interest rate as the Note A-3 prior to such amendments, (iii) all New A-3-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-3-1 Holder holding the New A-3-1 Notes shall notify the parties to the Note A-1 PSA and the Note A-3-1 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-3-1, (2) if Note A-3-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(c) For so long as GACC or an Affiliate of GACC (the “Initial Note A-3-2 Holder”) is the owner of Note A-3-2, the Initial Note A-3-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-3-2 Notes”) reallocating the principal of Note A-3-2 among other New A-3-2 Notes; reducing the Interest Rates of such New A-3-2 Notes or severing the Note A-3-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-3-2, provided that (i) the aggregate principal balance of the New A-3-2 Notes following such amendments is no greater than the principal balance of Note A-3-2 prior to such amendments, (ii) all New A-3-2 Notes continue to have the same or a lower interest rate as the Note A-3 prior to such amendments, (iii) all New A-3-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-3-2 Holder holding the New A-3-2 Notes shall notify the parties to the Note A-1 PSA and the Note A-3-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-3-2, (2) if Note A-3-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(d) For so long as GACC or an Affiliate of GACC (the “Initial Note A-3-3 Holder”) is the owner of Note A-3-3, the Initial Note A-3-3 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-3-3 Notes”) reallocating the principal of Note A-3-3 among other New A-3-3 Notes; reducing the Interest Rates of such New A-3-3 Notes or severing the Note A-3-3 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-3-3, provided that (i) the aggregate principal balance of the New A-3-3 Notes following such amendments is no greater than the principal balance of Note A-3-3 prior to such amendments, (ii) all New A-3-3 Notes continue to have the same or a lower interest rate as the Note A-3 prior to such amendments, (iii) all New A-3-3 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-3-3 Holder holding the New A-3-3 Notes shall notify the parties to the Note A-1 PSA and the Note A-3-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-3-3, (2) if Note A-3-3 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a)(d).
(e) For so long as GACC or an Affiliate of GACC (the “Initial Note A-4 Holder”) is the owner of Note A-4, the Initial Note A-4 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-4 Notes”) reallocating the principal of Note A-4 among other New A-4 Notes; reducing the Interest Rates of such New A-4 Notes or severing the Note A-4 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-4, provided that (i) the aggregate principal balance of the New A-4 Notes following such amendments is no greater than the principal balance of Note A-4 prior to such amendments, (ii) all New A-4 Notes continue to have the same or a lower interest rate as the Note A-4 prior to such amendments, (iii) all New A-4 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-4 Holder holding the New A-4 Notes shall notify the parties to the Note A-1 PSA and the Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-4, (2) if Note A-4 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-4 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(b).
(f) Each Non-Lead Securitization Servicing Agreement to shall provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer and Trustee master servicer or trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made.;
(iii) in the Master Servicer shall remit all payments received (or advanced) with respect to each event such Non-Lead NoteNote Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, net of and that in the Servicing Fee payable event that the funds received with respect to such Non-Lead Note and any other Excluded Amountare insufficient to cover such amounts, to the Holder of such Note on or prior to (x) the related master servicer will be required to pay the Master Servicer, Special Servicer Remittance Date or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (as defined herein)or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC Investor Reporting Package) pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advances;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and the Special Servicer under shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with the any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement shall include will be required to reimburse the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and Master Servicer, Special Servicer or Trustee under the Servicing StandardAgreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(viiv) The each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note Holders shall be entitled by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the same indemnity Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required provisions therein relating to (1) deliver the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (and shall be it being understood that the Special Servicer is not required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation ABmake any Advances) retained or engaged by it to deliver), in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs as the parties to the applicable Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law, and (2) to the extent applicableindemnification of the Special Servicer against any claims, to cooperate losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any depositor in an other Securitization in responding PSA and relating to comments from such Non-Lead Note; and
(vi) the Commission regarding anyMaster Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
Appears in 4 contracts
Samples: Co Lender Agreement (JPMDB Commercial Mortgage Securities Trust 2017-C5), Co Lender Agreement (CD 2017-Cd3 Mortgage Trust), Co Lender Agreement (CD 2016-Cd2 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an initial Holder Ladder or GACC or an Affiliate of an initial Holder thereof (an “Initial Note Holder”) is the owner of a Note (each, an “Owned Note”), such Initial Note Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of the related Owned Note or Notes held by to such Initial Holder among other New Notes; reducing the Interest Rates of such New Notes or severing the related Owned Note held by (or such Initial Holder New Notes) into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such the related Owned Note, or New Notes, as applicable, provided that (i) the aggregate principal balance of such New Notes following such amendments is no greater than the principal balance of the related Note Owned Note, or New Notes, as applicable, prior to such amendments, (ii) all New Notes continue to have the same interest rate as the related Owned Note (or such New Notes) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and Agreement, (iv) the Initial Note Holder holding the such New Notes shall notify the other Holders and the parties to the PSAs Lead Securitization in writing of such modified allocations and principal amounts, and (v) the execution of such amendments and New Notes shall not violate the Servicing Standard. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of such the related Owned Note, or New Notes, as applicable,, (2) if any an Owned Note or New Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes, as applicable. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a). The Initial Note Holder whose Owned Note or New Note is being reallocated or split pursuant to this Section 18(a) shall reimburse the other Holders for all costs and expenses incurred by the other Holders in connection with the reallocation or split.
(b) Each Lead each of the Note Holder A-1-B PSA, the Note A-2-A1 PSA, the Note A-2-A2 PSA, the Note A-2-B PSA, the Note A-3 PSA, the Note A-4-B PSA, the Note A-5-A PSA, the Note A-5-B PSA and the Note A-6 PSA shall cause the Lead Securitization Servicing Agreement to provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer and Trustee master servicer or trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made.;
(iii) in the event such Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer, Lead Securitization certificate administrator, Lead Securitization operating advisor or Lead Trustee, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer, Lead Securitization certificate administrator, Lead Securitization operating advisor or Lead Trustee to pay itself from the Lead Securitization Trust Fund’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to pay the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer, the Special Servicer and the non-lead trust will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer shall remit all payments received or the Lead Trustee, and (or advanced2) clause (v) below and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note;
(v) each of the Indemnified Parties shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each of such Indemnified Parties in respect of other mortgage loans in the Lead Securitization Trust pursuant to the terms of Lead Securitization Servicing Agreement) by the securitization trust holding such Non-Lead Note, net against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with servicing and administration of the Servicing Fee payable Mortgage Loan (or, with respect to such Note and any other Excluded Amountthe Lead Securitization operating advisor, incurred in connection with the provision of services for the Mortgage Loan) under the Lead Servicing Agreement (collectively, the “Indemnified Items”) to the Holder extent of its pro rata share of such Note on or prior Indemnified Items, and to the extent amounts on deposit in the “Serviced Pari Passu Companion Loan Custodial Account” are insufficient for reimbursement of such amounts, the related Non-Lead Master Servicer Remittance Date will be required to reimburse each of the applicable Indemnified Parties for its pro rata share of the insufficiency out of general funds in the collection account (as defined hereinor equivalent account) established under such Non-Lead Servicing Agreement; provided, however, that any Non-Lead Servicing Agreement may include limitations and conditions on the payment or reimbursement of Indemnified Items to the Lead Securitization operating advisor (including limitations and conditions with respect to the timing of such payments or reimbursements and the sources of funds for such payments or reimbursements);
(ivvi) with respect to each other Note that is held by a Securitization, the related Non-Lead Master Servicer agrees to deliver (and the Special Servicer agrees will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Lead Securitization operating advisor and Master Servicer for delivery(i) to each promptly following Securitization of the respective Non-Lead Note Holders or, if such Non-Lead Securitization Note, notice of the deposit of such Non-Lead Securitization Note is securitizedinto a Securitization Trust (which notice shall also provide contact information for the related Non-Lead Trustee, the respective certificate administrator, Non-Lead Master ServicersServicer, all reports required non-lead special servicer and the party designated to be delivered exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the executed Non-Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC Investor Reporting Package) pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (yii) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information notice of any subsequent change in the Master Servicer’s possession as is reasonably necessary for each identity of such Non-Lead Master Servicer or the party designated to determine exercise the recoverability rights of P&I Advances;
(v) the Master Servicer shall provide (and the Special Servicer agrees “Non-Controlling Note Holder” with respect to deliver to the Master Servicer to provide) to each such Non-Lead Securitization Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing under this Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance together with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standardrelevant contact information);
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, Servicer and the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other third party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each beneficiaries of the other PSAs as the parties to the applicable Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law, and (2) to the extent applicable, to cooperate with any depositor in an other Securitization in responding to comments from the Commission regarding anyforegoing provisions.
Appears in 4 contracts
Samples: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2016-Lc24), Co Lender Agreement (JPMDB Commercial Mortgage Securities Trust 2016-C2), Co Lender Agreement (COMM 2015-Lc23 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an initial any Initial Note Holder or an Affiliate of an initial Holder thereof (an each, a “Initial HolderResizing Entity”) is the owner of a any Note (each, an “Owned Note”), such Initial Holder Resizing Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case each case, as applicable “New Notes”) reallocating the principal of the an Owned Note or Notes held by to such Initial Holder among other New Notes; reducing the Mortgage Interest Rates of such New Notes or severing the an Owned Note held by such Initial Holder into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such Owned Note, provided that (i) the aggregate principal balance of such all outstanding New Notes following such amendments is no greater than the aggregate principal balance of the related Owned Note prior to such amendments, (ii) all New Notes continue to have the same or a lower interest rate as the related Note Notes prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Resizing Entity holding the New Notes shall notify the other Holders Lead Note Holder, the Master Servicer, the Special Servicer, the Certificate Administrator and the parties to the PSAs Trustee in writing of such modified allocations and principal amounts. If the Lead Note Holder so requests, the Resizing Entity holding the New Notes (and any subsequent holder of such Notes) shall execute a confirmation of the continuing applicability of this Agreement to the New Notes, as so modified. Except for the foregoing reallocation and for modifications pursuant to the Lead Securitization Servicing Agreement, no Note may be modified or amended without the consent of its holder and the consent of the holder of each other Note. In connection with the foregoingforegoing (provided the conditions set forth in clauses (i) through (iv) above are satisfied, with respect to clauses (1i) through (iv), as certified by the Resizing Entity, on which certification the Master Servicer can rely), the Master Servicer is hereby authorized and directed to execute amendments to the Mortgage Loan Agreement Documents and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders Holders, as applicable, solely for the purpose of reflecting such reallocation of principal or such severing of such Note, (2) if any and that each New Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes.
(b) Each Lead Note Holder shall cause the Lead Securitization Servicing Agreement to provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein a “Note” hereunder and made a part thereof):
(i) the applicable Master Servicer for purposes of adding and Trustee for such Securitization modifying any definitions related thereto. Rating Agency Confirmation shall not be required for any amendments to notify the master servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made within two Business Days of making such advance; and
(ii) if the Master Servicer determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide the servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, within 2 Business Days after such determination was made.
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to each Non-Lead Note, net of the Servicing Fee payable with respect to such Note and any other Excluded Amount, to the Holder of such Note on or prior to the related Master Servicer Remittance Date (as defined herein);
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports this Agreement required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC Investor Reporting Package) pursuant to facilitate the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due datethis paragraph 18(a); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advances;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs as the parties to the applicable Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law, and (2) to the extent applicable, to cooperate with any depositor in an other Securitization in responding to comments from the Commission regarding any.
Appears in 4 contracts
Samples: Co Lender Agreement (CSMC 2016-NXSR Commercial Mortgage Trust), Co Lender Agreement (CFCRE 2016-C7 Mortgage Trust), Co Lender Agreement (Morgan Stanley Capital I Trust 2016-Ubs12)
Provisions Relating to Securitization. (a) For so long as an initial Holder Citi or an Affiliate of an initial Holder Citi (an the “Initial Note A-1 Holder”) is the owner of a NoteNote A-1, such the Initial Note A-1 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-1 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-1 among other New A-1 Notes; reducing the Mortgage Interest Rates of such New A-1 Notes or severing the Note held by such Initial Holder A-1 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-1, provided that (i) the aggregate principal balance of such the New A-1 Notes following such amendments is no greater than the principal balance of the related Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same or a lower interest rate as the related Note A-1 prior to such amendments, (iii) all New A-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-1 Holder holding the New A-1 Notes shall notify the other Holders and the parties to the PSAs Note A-2 PSA (if the Note A-2 PSA is different from the Note A-1 PSA), the Note A-3 PSA, the Note A-4A PSA and the Note A-4B PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, any reduction of Mortgage Interest Rates or such severing of such NoteNote A-1, (2) if any Note A-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) Each Lead For so long as Ladder or an Affiliate of Ladder (the “Initial Note A-2 Holder”) is the owner of Note A-2, the Initial Note A-2 Holder shall cause have the Lead Securitization Servicing Agreement to provide that (andright, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):
(i) the applicable Master Servicer and Trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made within two Business Days of making such advance; and
(ii) if the Master Servicer determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide the servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, within 2 Business Days after such determination was made.
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to each Non-Lead Note, net of the Servicing Fee payable with respect to such Note and any other Excluded Amount, to the Holder of such Note on or prior to the related Master Servicer Remittance Date (as defined herein);
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC Investor Reporting Package) pursuant subject to the terms of the Lead Securitization Servicing Agreement on Mortgage Loan Documents, to cause the earlier Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of Note A-2 among other New A-2 Notes; reducing the Mortgage Interest Rates of such New A-2 Notes or severing the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-2, provided that (xi) the date aggregate principal balance of the New A-2 Notes following such reports are required to be delivered amendments is no greater than the principal balance of Note A-2 prior to such Trustee amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (yiv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the parties to the Note A-1 PSA, the Note A-3 PSA, the Note A-4A PSA and the Note A-4B PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer Remittance Date is hereby authorized to execute amendments to the Loan Agreement and this Agreement (but in no event less than 2 Business Days after or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, any reduction of Mortgage Interest Rates or such severing of Note A-2, (2) if Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(b).
(c) For so long as Citi or an Affiliate of Citi (the “Initial Note A-3 Holder”) is the owner of Note A-3, the Initial Note A-3 Holder shall have the right, subject to the terms of the Mortgage Loan due date)Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-3 Notes”) reallocating the principal of Note A-3 among other New A-3 Notes; including reducing the Mortgage Interest Rates of such information New A-3 Notes or severing the Note A-3 into one or more further “component” notes in the Master Servicer’s possession aggregate principal amount equal to the then outstanding principal balance of Note A-3, provided that (i) the aggregate principal balance of the New A-3 Notes following such amendments is no greater than the principal balance of Note A-3 prior to such amendments, (ii) all New A-3 Notes continue to have the same or a lower interest rate as is reasonably necessary for each the Note A-3 prior to such Non-Lead Master Servicer amendments, (iii) all New A-3 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to determine the recoverability terms of P&I Advances;
this Agreement and (viv) the Initial Note A-3 Holder holding the New A-3 Notes shall notify the parties to the Note A-1 PSA, the Note A-2 PSA, the Note A-4A PSA and the Note A-4B PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer shall provide (and the Special Servicer agrees is hereby authorized to deliver execute amendments to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls Loan Agreement and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing this Agreement (or to amend and restate the Controlling Class Representative Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, any reduction of Mortgage Interest Rates or such severing of Note A-3, (or analogous term2) if Note A-3 is severed into “component” notes, such component notes shall each have their same rights as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
respective original Note and (vi3) the servicing duties of each definition of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan term “Securitization” and all of the Notes on behalf related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(c).
(d) For so long as Ladder or an Affiliate of Ladder (the “Initial Note A-4A Holder”) is the owner of Note A-4A, the Initial Note A-4A Holder shall have the right, subject to the terms of the Holders Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (including in either case “New A-4A Notes”) reallocating the respective Trustees principal of Note A-4A among other New A-4A Notes; reducing the Mortgage Interest Rates of such New A-4A Notes or severing the Note A-4A into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-4A, provided that (i) the aggregate principal balance of the New A-4A Notes following such amendments is no greater than the principal balance of Note A-4A prior to such amendments, (ii) all New A-4A Notes continue to have the same or a lower interest rate as the Note A-4A prior to such amendments, (iii) all New A-4A Notes pay pro rata and related Certificateholders) in accordance with on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (aiv) the Master Servicer, any primary servicer, Initial Note A-4A Holder holding the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization New A-4A Notes shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs as notify the parties to the applicable Securitization may require Note A-1 PSA, the Note A-2 PSA, the Note A-3 PSA and the Note A-4B PSA in order writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to comply with their obligations under execute amendments to the Securities Act Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of 1933any or all of the Holders solely for the purpose of reflecting such reallocation of principal, as amendedany reduction of Mortgage Interest Rates or such severing of Note A-4A, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law, and (2) if Note A-4A is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the extent applicable, New A-4A Notes. Rating Agency Confirmation shall not be required for any amendments to cooperate with any depositor in an other Securitization in responding this Agreement required to comments from facilitate the Commission regarding anyterms of this paragraph 18(d).
Appears in 4 contracts
Samples: Co Lender Agreement (JPMCC Commercial Mortgage Securities Trust 2016-Jp4), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2016-C37), Co Lender Agreement (CD 2016-Cd2 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an initial Holder Natixis or an Affiliate of an initial Holder Natixis (an “Initial Note Holder”) is the owner of a Noteany Notes, such Initial Note Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes (“Amended Notes”) or additional notes (in either case the “New Notes”) reallocating the principal of the Note or Notes held by such Initial Holder that it owns (but in no case any Note that it does not own) among other New Notes; reducing the Interest Rates of such Amended Notes and New Notes or severing the a Note held by such Initial Holder into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such Notethe Note or Notes being amended or created, provided that (i) the aggregate principal balance of such the Amended Notes and New Notes following such amendments is no greater than the principal balance of the related Note Amended Notes and New Notes prior to such amendments, (ii) all New Notes continue to have the same interest rate as the related Amended Note of which is was a part prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis with the Amended Notes and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder holding the New Notes shall notify the each other Holders and Holder, as applicable, and, if any other Note has been included in a securitization, the parties to the PSAs under each applicable pooling and servicing agreement, in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of such a Note, (2) if any a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1Note, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes.
Notes and (b4) Each if Natixis is the current Directing Holder, it may designate the holder of a different Note to be the Directing Holder. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this Section 21(a). The Initial Note Holder whose Note is being reallocated or split pursuant to this Section 21(a) shall reimburse the other Holders for all costs and expenses incurred by the other Holders in connection with the reallocation or split. If a New Note is created out of the Lead Note the Initial Note A-1 Holder shall cause designate which Note will be the Lead Securitization Servicing Agreement to provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):
(i) the applicable Master Servicer and Trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made within two Business Days of making such advance; and
(ii) if the Master Servicer determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide the servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, within 2 Business Days after such determination was madehereunder.
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to each Non-Lead Note, net of the Servicing Fee payable with respect to such Note and any other Excluded Amount, to the Holder of such Note on or prior to the related Master Servicer Remittance Date (as defined herein);
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC Investor Reporting Package) pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advances;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs as the parties to the applicable Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law, and (2) to the extent applicable, to cooperate with any depositor in an other Securitization in responding to comments from the Commission regarding any
Appears in 4 contracts
Samples: Co Lender Agreement (UBS Commercial Mortgage Trust 2018-C15), Co Lender Agreement (UBS Commercial Mortgage Trust 2018-C13), Co Lender Agreement (CSAIL 2018-Cx12 Commercial Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an initial Holder Ladder or an Affiliate of an initial Holder Ladder (an “Initial Note Holder”) is the owner of a any Note, such the Initial Note Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of the applicable Note or Notes held by such Initial Holder among other New Notes; reducing the Interest Rates of such New Notes or severing the applicable Note held by such Initial Holder into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such Note, provided that (i) the aggregate principal balance of such the New Notes following such amendments is no greater than the principal balance of the related such Note prior to such amendments, (ii) all New Notes continue to have the same interest rate as the related such Note prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and Agreement, (iv) the Initial Note Holder holding the New Notes shall notify the each other Holders and Holder, as applicable, and, if any other Note has been included in a securitization, the parties to the PSAs under each applicable PSA, in writing of such modified allocations and principal amounts, and (v) the execution of such amendments and New Notes shall not violate the Servicing Standard. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of such Noteany Note held by the Initial Note Holder, (2) if any Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a). The Initial Note Holder whose Note is being reallocated or split pursuant to this Section 18(a) shall reimburse the other Holders for all costs and expenses incurred by the other Holders in connection with the reallocation or split.
(b) Each Non-Lead Note Holder shall cause the Lead Securitization Servicing Agreement to shall provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer and Trustee master servicer or trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made.;
(iii) in the event such Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer, Lead Securitization certificate administrator, Lead Securitization operating advisor or Lead Trustee, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer, Lead Securitization certificate administrator, Lead Securitization operating advisor or Lead Trustee to pay itself from the Lead Securitization Trust Fund’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to pay the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer, the Special Servicer and the non-lead trust will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer shall remit all payments received or the Lead Trustee, and (or advanced2) clause (v) below and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any pooling and servicing agreement relating to such Non-Lead Note;
(v) each of the Indemnified Parties shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each of such Indemnified Parties in respect of other mortgage loans in the Lead Securitization Trust pursuant to the terms of Lead Securitization Servicing Agreement) by the securitization trust holding such Non-Lead Note, net against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with servicing and administration of the Servicing Fee payable Mortgage Loan (or, with respect to such Note and any other Excluded Amountthe Lead Securitization operating advisor, incurred in connection with the provision of services for the Mortgage Loan) under the Lead Servicing Agreement (collectively, the “Indemnified Items”) to the Holder extent of its pro rata share of such Note on or prior Indemnified Items, and to the extent amounts on deposit in the “Serviced Pari Passu Companion Loan Custodial Account” are insufficient for reimbursement of such amounts, the related Non-Lead Master Servicer Remittance Date will be required to reimburse each of the applicable Indemnified Parties for its pro rata share of the insufficiency out of general funds in the collection account (as defined hereinor equivalent account) established under such Non-Lead Servicing Agreement; provided, however, that any Non-Lead Servicing Agreement may include limitations and conditions on the payment or reimbursement of Indemnified Items to the Lead Securitization operating advisor (including limitations and conditions with respect to the timing of such payments or reimbursements and the sources of funds for such payments or reimbursements);
(ivvi) with respect to each other Note that is held by a Securitization, the related Non-Lead Master Servicer agrees to deliver (and the Special Servicer agrees will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Lead Securitization operating advisor and Master Servicer for delivery(i) to each promptly following Securitization of the respective Non-Lead Note Holders or, if such Non-Lead Securitization Note, notice of the deposit of such Non-Lead Securitization Note is securitizedinto a Securitization Trust (which notice shall also provide contact information for the related Non-Lead Trustee, the respective certificate administrator, Non-Lead Master ServicersServicer, all reports required non-lead special servicer and the party designated to be delivered exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the executed Non-Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC Investor Reporting Package) pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (yii) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information notice of any subsequent change in the Master Servicer’s possession as is reasonably necessary for each identity of such Non-Lead Master Servicer or the party designated to determine exercise the recoverability rights of P&I Advances;
(v) the Master Servicer shall provide (and the Special Servicer agrees “Non-Controlling Note Holder” with respect to deliver to the Master Servicer to provide) to each such Non-Lead Securitization Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing under this Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance together with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standardrelevant contact information);
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, Servicer and the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other third party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each beneficiaries of the other PSAs as the parties to the applicable Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law, and (2) to the extent applicable, to cooperate with any depositor in an other Securitization in responding to comments from the Commission regarding anyforegoing provisions.
Appears in 3 contracts
Samples: Co Lender Agreement (COMM 2016-Ccre28 Mortgage Trust), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2015-P2), Co Lender Agreement (COMM 2015-Lc23 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an initial Initial Note Holder or an its Affiliate of an initial Holder (an “Initial HolderNote Holder Entity”) is the owner of a Noteits Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of the Note or Notes held by such Initial Holder among other New Notes; reducing the Interest Rates of such New Notes its Note(s) or severing the Note held by such Initial Holder its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then then-outstanding principal balance of such Noteits Note(s), provided that (i) the aggregate principal balance of such the New Notes following such amendments is no greater than the principal balance of the related Note original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the related Note original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the parties to the PSAs applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of such NoteNote(s), (2) if any a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to if such original Note is Note A-1-1, only then the applicable Initial Note Holder shall designate one component may be designated as of the New Notes to take the place of Note A-1-1 in the definitions of “Directing Holder”, “Lead Note) ”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this Section 18(a).
(b) Each The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide that as follows (and, and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) the applicable Master Servicer and or Trustee for such Securitization shall be required to notify the master servicer, special servicer provide written notice to each Non-Lead Master Servicer and trustee of each other Securitization of the amount Non-Lead Trustee of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made within two (2) Business Days of making such advance; and;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property AdvanceAdvance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide the servicers under any other PSA each Non-Lead Master Servicer written notice of such determination, together with supporting evidence for such determination, within 2 Business Days determination promptly after such determination was made.made together with such reports that the Master Servicer delivered to the Special Servicer or Trustee in connection with notification of its determination of nonrecoverability;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to each any Non-Lead Note, net of the Servicing Fee Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Note Non-Lead Note, and any other Excluded Amountapplicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder of such Note on or prior to by the related applicable Master Servicer Remittance Date (as defined herein)for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each other Non-Lead Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees or cause to deliver be delivered or make available to the Master Servicer for delivery) to each of the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective related Non-Lead Master Servicers, Servicer all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC CREFC® Investor Reporting PackagePackage (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement on to the earlier of (x) extent related to the date Mortgage Loan, the Mortgaged Property, such reports are required to be delivered to such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee and (y) by the Business Day following the Master Servicer Remittance Date (but in no event less than 2 Business Days after for the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I AdvancesNote;
(vvi) the Master Servicer and Special Servicer, as applicable, shall provide (and or the Special Servicer agrees to deliver shall provide to the Master Servicer to providefor provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vivii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees trustees and related Certificateholderscertificateholders) in accordance with the terms and provisions of this Agreement and Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiviii) The each Non-Lead Note Holders Holder shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The ; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer, the Special Servicer servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositors depositor of each other any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization Securitization) and each “certification certifying party” and depositor for their (i) its failure to deliver the items in clause (viiiix) below in a timely manner and for manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viiiix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer and Servicer, the Lead Securitization Trustee, certificate administrator the Certificate Administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner, manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form 15ABS-15G, Form 10-K, Form 10D, 10-D and Form 8-K), and (ii) upon request, any other materials specified in each the related Non-Lead Securitization Servicing Agreement, in the case of the other PSAs clauses (i) and (ii), as the parties to related Non-Lead Depositor or the applicable Securitization may require related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with their (1) its obligations under the Securities Act of 1933Act, as amended, Securities the Exchange Act of 1934 (including Rule 15Ga-1), as amendedRegulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), and Regulation AB, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any other applicable lawNon-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an XXXXX-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an XXXXX-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable Xxxxxxxx-Xxxxx Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent applicableany such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to cooperate remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any depositor in an other Securitization in responding such sale, the Special Servicer shall provide notice to comments from the Commission regarding anyeach Non-Lead Master Servicer who sh
Appears in 3 contracts
Samples: Co Lender Agreement (Benchmark 2024-V12 Mortgage Trust), Co Lender Agreement (BMO 2024-5c8 Mortgage Trust), Co Lender Agreement (Bank5 2024-5yr12)
Provisions Relating to Securitization. (a) For so long as an initial Holder or an Affiliate of an initial Holder (an “Initial Holder”) Note A-4-2 is not in a securitization, the owner of a Note, such Initial Note A-4-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-4-2 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-4-2 among other New A-4-2 Notes; reducing the Interest Rates of such New A-4-2 Notes or severing the Note held by such Initial Holder A-4-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-4-2, provided that (i) the aggregate principal balance of such the New A-4-2 Notes following such amendments is no greater than the principal balance of the related Note A-4-2 prior to such amendments, (ii) all New A-4-2 Notes continue to have the same or a lower interest rate as the related Note A-4-1 prior to such amendments, (iii) all New A-4-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-4-2 Holder holding the New A-4-2 Notes shall notify the other Holders and the parties to the PSAs Note A-1 PSA, the Note A-2 PSA and the C4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of such NoteNote A-4-2, (2) if any Note A-4-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-4-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(c).
(b) Each Non-Lead Note Holder shall cause the Lead Securitization Servicing Agreement to shall provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer and master servicer or Trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made.;
(iii) in the event such Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-1 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-2 PSA (provided that party is not also a party to the Note A-1 PSA) notice of the Note A-1 Securitization in writing (which may be by email) prior to or promptly following the Note A-1 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-1 PSA and the identity of the Controlling Class Representative under such Note A-1 PSA. In addition, after the Note A-1 Securitization Date, the Note A-1 Holder shall send a copy of the Note A-1 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-2 PSA, C4 PSA and the Note A-4-2 PSA (provided such party is not also a party to the Note A-1 PSA).
(d) The Note A-3 Holder and Note A-4-1 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that party is not also a party to the C4 PSA) notice of the C4 Securitization in writing (which may be by email) prior to or promptly following the C4 Securitization Date. Such notice shall contain contact information for each of the parties of the C4 PSA and the identity of the Controlling Class Representative under such C4 PSA. In addition, after the C4 Securitization Date, the Note A-3 Holder and the Note A-4-1 Holder shall send a copy of the C4 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA, the Note A-2 PSA and the Note A-4-2 PSA (provided such party is not also a party to the C4 PSA).
(e) The Note A-4-2 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that party is not also a party to the Note A-4-2 PSA) notice of the Note A-4-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-4-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-4-2 PSA and the identity of the Controlling Class Representative under such Note A-4-2 PSA. In addition, after the Note A-4-2 Securitization Date, the Note A-4-2 Holder shall send a copy of the Note A-4-2 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA, the Note A-2 PSA and the C4 PSA (provided such party is not also a party to the Note A-4-2 PSA).
(f) The Note A-1 PSA shall:
(i) provide that the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) provide that if the Master Servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the Master Servicer shall provide the other servicers written notice of such determination within two Business Days after such determination was made;
(iii) provide that the Master Servicer shall remit all payments received (or advanced) with respect to each any Non-Lead Note, net of the its Servicing Fee payable with respect to such Note and any other Excluded Amountapplicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee, to the Non-Lead Holder of such Note on or prior to the related applicable Master Servicer Remittance Date (as defined herein)Date;
(iv) with respect to each other Note provide that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective master servicer under a Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC CREFC® Investor Reporting Package) ® pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advancesa monthly basis;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), to the parties to any Non-Lead Servicing Agreement, at its own expense, in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs Servicing Agreements as the parties to the applicable each Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, each Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the Trustee for any prior Securitization a copy of the Lead Securitization Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the Trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and with respect to the Lead Servicers, upon prior written request, market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization. As used in this Agreement, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (2Regulation AB), 17 C.F.R. §§ 229.1100-229.1125, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the United States Securities and Exchange Commission (the “Commission”) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time, in each case as effective from time to time as of the compliance dates specified therein. The Master Servicer, any primary servicer and the Special Servicer, upon prior written request, shall each be required to provide certification and indemnification to each Certifying Person with respect to the Xxxxxxxx-Xxxxx Certification (or analogous terms) as such terms are defined in the related Non-Lead Servicing Agreements;
(vi) provide that the servicing duties of each of the Master Servicer and Special Servicer under the Servicing Agreement shall include the duty to service each Non-Lead Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(vii) provide that any late collections received by the Master Servicer from the Borrower for which a P&I Advance has already been paid by a master servicer or trustee under a Non-Lead Servicing Agreement shall be remitted by the Master Servicer to such master servicer or trustee under a Non-Lead Servicing Agreement, as applicable, within one Business Day of receipt of properly identified funds; provided, however, that to the extent applicableany such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to cooperate remit such later collections to the Non-Lead Master Servicer within one Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two Business Days of receipt of properly identified funds;
(viii) provide that the Non-Lead Note Holders are intended third-party beneficiaries in respect of the rights afforded it under the Servicing Agreement and each master servicer under a Non-Lead Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note under this Agreement and the Servicing Agreement;
(ix) provide that each master servicer and special servicer under any depositor Non-Lead Servicing Agreement shall be a third-party beneficiary of the Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such master servicer or special servicer, as the case may be, and the provisions regarding coordination of Advances;
(x) provide that it shall not be amended in an other Securitization in responding a manner that materially and adversely affects the rights of the Non-Lead Note Holders without their consent; and
(xi) satisfy Xxxxx’x rating methodology related to comments from the Commission regarding anypermitted investments and eligible accounts applicable to securities rated “Aaa” by Xxxxx’x.
Appears in 3 contracts
Samples: Co Lender Agreement (SG Commercial Mortgage Securities Trust 2016-C5), Co Lender Agreement (CFCRE 2016-C3 Mortgage Trust), Co Lender Agreement (CFCRE 2016-C4 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an initial Holder CCRE or an Affiliate of an initial Holder CCRE (an the “Initial Note A-1 Holder”) is the owner of a NoteNote A-2, such the Initial Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note held by such Initial Holder A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-2, provided that (i) the aggregate principal balance of such the New A-2 Notes following such amendments is no greater than the principal balance of the related Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the related Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the other Holders and the parties to the PSAs Note A-1 PSA and the Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of such NoteNote A-2, (2) if any Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) Each Lead For so long as CCRE or an Affiliate of CCRE (the “Initial Note A-3 Holder”) is the owner of Note A-3, the Initial Note A-3 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-3 Notes”) reallocating the principal of Note A-3 among other New A-3 Notes; reducing the Interest Rates of such New A-3 Notes or severing the Note A-3 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-3, provided that (i) the aggregate principal balance of the New A-3 Notes following such amendments is no greater than the principal balance of Note A-3 prior to such amendments, (ii) all New A-3 Notes continue to have the same or a lower interest rate as the Note A-3 prior to such amendments, (iii) all New A-3 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-3 Holder holding the New A-3 Notes shall notify the parties to the Note A-1 PSA and the Note A-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-3, (2) if Note A-3 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(b).
(c) Each Non-Lead Securitization Servicing Agreement to shall provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer and master servicer or Trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(1) The Note A-2 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that party is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA.
(2) The Note A-3 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that party is not also a party to the Note A-3 PSA) notice of the Note A-3 Securitization in writing (which may be by email) prior to or promptly following the Note A-3 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-3 PSA and the identity of the Controlling Class Representative under such Note A-3 PSA. In addition, after the Note A-3 Securitization Date, the Note A-3 Holder shall send a copy of the Note A-3 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA.
(e) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the Master Servicer shall provide the other servicers written notice of such determination within two Business Days after such determination was made;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to each any Non-Lead Note, net of the its Servicing Fee payable with respect to such Note and any other Excluded Amountapplicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee, to the Non-Lead Holder of such Note on or prior to the related applicable Master Servicer Remittance Date (as defined herein)Date;
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective master servicer under a Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC CREFC® Investor Reporting Package) ® pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advancesa monthly basis;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), to the parties to any Non-Lead Servicing Agreement, at its own expense, in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs Servicing Agreements as the parties to the applicable each Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, each Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the Trustee for any prior Securitization a copy of the Lead Securitization Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the Trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and, in the case of clauses (x) and (y) and with respect to the Lead Servicers, upon prior written request, market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization. As used in this Agreement, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the United States Securities and Exchange Commission (2the “Commission”) in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506,1,631 (Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by the Commission or its staff time to time. The Master Servicer, any primary servicer and the Special Servicer, upon prior written request, shall each be required to provide certification and indemnification to each Certifying Person with respect to the extent Xxxxxxxx-Xxxxx Certification (or analogous terms) as such terms are defined in the related Non-Lead Servicing Agreements;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Servicing Agreement shall include the duty to service each Non-Lead Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(vii) any late collections received by the Master Servicer from the Borrower for which a P&I Advance has already been paid by a master servicer or trustee under a Non-Lead Servicing Agreement shall be remitted by the Master Servicer to such master servicer or Trustee under a Non-Lead Servicing Agreement, as applicable, within one Business Day of receipt thereof;
(viii) the Non-Lead Note Holders are intended third-party beneficiaries in respect of the rights afforded it under the Servicing Agreement and each master servicer under a Non-Lead Servicing Agreement will be entitled to cooperate enforce the rights of the related Trustee with respect to such Non-Lead Note under this Agreement and the Servicing Agreement; and
(ix) each master servicer and special servicer under any depositor in an other Securitization in responding Non-Lead Servicing Agreement shall be a third-party beneficiary of the Servicing Agreement with respect to comments from all provisions therein expressly relating to compensation, reimbursement or indemnification of such master servicer or special servicer, as the Commission case may be, and the provisions regarding anycoordination of Advances.
Appears in 3 contracts
Samples: Co Lender Agreement (CFCRE 2016-C4 Mortgage Trust), Co Lender Agreement (CFCRE 2016-C3 Mortgage Trust), Co Lender Agreement (COMM 2015-Ccre27 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an initial Holder or an Affiliate of an initial Holder (an “Initial Holder”) is the owner of a Note, such Initial Any Note Holder shall have the right, subject to the terms of the Mortgage Loan DocumentsDocuments and so long as the related Note is not held by a Securitization Trust, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of such Note among the Note or Notes held by such Initial Holder among other New Notes; reducing the Mortgage Interest Rates of such New Notes or severing the such Note held by such Initial Holder into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such Note, provided that (i) the aggregate principal balance of such the New Notes following such amendments is no greater than the principal balance of the related such Note prior to such amendments, (ii) all New Notes continue to have the same or a lower interest rate as the related such Note prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder holding the New Notes shall notify the other Note Holders and the parties to the PSAs in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, any reduction of Mortgage Interest Rates or such severing of such the subject Note, (2) if any the subject Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to only one such Note may be named in place of Note A-1-A in the definitions of “Directing Holder”, only one component may be designated as the “Lead NoteSecuritization” and “Servicing Agreement”) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) Each The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide that as follows (and, and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) the applicable Master Servicer and or Trustee for such Securitization shall be required to notify the master servicer, special servicer provide written notice to each Non-Lead Master Servicer and trustee of each other Securitization of the amount Non-Lead Trustee of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made Note(s) within two (2) Business Days of making such advance; and;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note(s) or Property AdvanceAdvance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide the servicers under any other PSA each Non-Lead Master Servicer written notice of such determination, together with supporting evidence for such determination, within 2 Business Days determination promptly after such determination was made.made together with such reports that the Master Servicer delivered to the Special Servicer or Trustee in connection with notification of its determination of nonrecoverability;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to each Non-Lead Note, net of the Servicing Fee Fees payable to the Master Servicer and Special Servicer with respect to such Note Non-Lead Note, and any other Excluded Amountapplicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee, to the related Non-Lead Note Holder of such Note on or prior to by the related Master Servicer Remittance Date (as defined herein)for such Non-Lead Note;
(iv) with respect to each other Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees or cause to deliver be delivered or to make available to the Master Servicer for delivery) to each of the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective related Non-Lead Master Servicers, Servicer all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC CREFC® Investor Reporting PackagePackage (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement on to the earlier of (x) extent related to the date Mortgage Loan, the Mortgaged Property, such reports are required to be delivered to such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee and (y) by the Business Day following the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I AdvancesNote;
(v) the Master Servicer and Special Servicer, as applicable, shall provide (and or the Special Servicer agrees to deliver shall provide to the Master Servicer to providefor provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees trustees and related Certificateholderscertificateholders) in accordance with the terms and provisions of this Agreement and Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The each Non-Lead Note Holders Holder shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The ; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer, the Special Servicer servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositors depositor of each other any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization Securitization) and each “certification certifying party” and depositor for their (i) its failure to deliver the items in clause (viii) below in a timely manner and for manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) with respect to each Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer and Servicer, the Lead Securitization Trustee, certificate administrator the Certificate Administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner, manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form 15ABS-15G, Form 10-K, Form 10D, 10-D and Form 8-K), and (ii) upon request, any other materials specified in each the related Non-Lead Securitization Servicing Agreement, in the case of the other PSAs clauses (i) and (ii), as the parties to related Non-Lead Depositor or the applicable Securitization may require related Non-Lead Trustee reasonably believes, in good faith, are required in order for such Non-Lead Depositor or such Non-Lead Trustee to comply with their its obligations under the Securities Act of 1933Act, as amended, Securities the Exchange Act of 1934 (including Rule 15Ga-1), as amendedRegulation AB and Form SF-3, (b) without limiting the generality of the foregoing (x) the Depositor or the related Holder shall provide or cause to be provided to each Non-Lead Depositor and Regulation AB, and any other applicable laweach Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) business day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an XXXXX-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a Holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of such Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to each Non-Lead Depositor and each Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an XXXXX-compatible format to each Non-Lead Depositor and each Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable Xxxxxxxx-Xxxxx Certification with respect to any Non-Lead Securitization;
(ix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(x) any late collections received by the Master Servicer from the Borrower that are allocable to any Non-Lead Note or reimbursable to the related Non-Lead Master Servicer or the related Non-Lead Trustee shall be remitted by the Master Servicer to the related Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to the related Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiii) the Lead Securitization Servicing Agreement shall provide for the sale of all of the Notes as one whole loan as described in Section 13(c) hereof;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with each Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or the failure to remit to the Master Servicer for deposit into the Collection Account or the related Loan Combination Custodial Account, as applicable, any amount required to cooperate be so remitted by the Special Servicer within one (1) Business Day after the date such remittance was to be made; (iii) the qualification, downgrade or withdrawal, or placing on “watch status” in contemplation of a rating downgrade or withdrawal of the ratings of any class of certificates issued in connection with any depositor Non-Lead Securitization by the rating agencies rating such securities (and such qualification, downgrade, withdrawal or “watch status” placement shall not have been withdrawn by such rating agencies within sixty (60) days of actual knowledge of such event by the Master Servicer or the Special Servicer, as the case may be), and publicly citing servicing concerns with the Master Servicer or Special Servicer, as applicable, as the sole or a material factor in an other Securitization in responding such rating action; and (iv) the failure to comments from provide to any Non-Lead Note Holder (if and to the Commission regarding anyextent required under the related Non-Lead
Appears in 3 contracts
Samples: Co Lender Agreement (Citigroup Commercial Mortgage Trust 2018-B2), Co Lender Agreement (BENCHMARK 2018-B2 Mortgage Trust), Co Lender Agreement (Benchmark 2018-B1 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an initial Holder or an Affiliate of an initial Holder (an “Initial Holder”) Note A-2 is not in a securitization, the owner of a Note, such Initial Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note held by such Initial Holder A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-2, provided that (i) the aggregate principal balance of such the New A-2 Notes following such amendments is no greater than the principal balance of the related Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the related Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the other Holders and the parties to the PSAs Note A-1 PSA and the Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of such NoteNote A-2, (2) if any Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) Each Non-Lead Note Holder shall cause the Lead Securitization Servicing Agreement to shall provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer and master servicer or Trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that party is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided such party is not also a party to the Note A-2 PSA).
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the Master Servicer shall provide the other servicers written notice of such determination within two Business Days after such determination was made;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to each any Non-Lead Note, net of the its Servicing Fee payable with respect to such Note and any other Excluded Amountapplicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee, to the Non-Lead Holder of such Note on or prior to the related applicable Master Servicer Remittance Date (as defined herein)Date;
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) make available to each of the respective master servicer under a Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC CREFC® Investor Reporting Package) ® pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advancesa monthly basis;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), to the parties to any Non-Lead Servicing Agreement, at its own expense, in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs Servicing Agreements as the parties to the applicable each Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, each Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the Trustee for any prior Securitization a copy of the Lead Securitization Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the Trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and, with respect to the Lead Servicers, upon prior written request, market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization. As used in this Agreement, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1125, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Xxxxxx Xxxxxx Securities and Exchange Commission (2the “Commission”) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time, in each case as effective from time to time as of the compliance dates specified therein. The Master Servicer, any primary servicer and the Special Servicer, upon prior written request, shall each be required to provide certification and indemnification to each Certifying Person with respect to the extent Xxxxxxxx-Xxxxx Certification (or analogous terms) as such terms are defined in the related Non-Lead Servicing Agreements;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Servicing Agreement shall include the duty to service each Non-Lead Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(vii) any late collections received by the Master Servicer from the Borrower subsequent to 3:00 p.m. (New York City time) on the related Due Date therefor for which a P&I Advance has already been paid by a master servicer or Trustee under a Non-Lead Servicing Agreement shall be remitted by the Master Servicer to such master servicer or trustee under a Non-Lead Servicing Agreement, as applicable, within one Business Day after the Determination Date, unless such amount would otherwise be included in the monthly remittance to cooperate the Non-lead Note Holders for such month;
(viii) the Non-Lead Note Holders are intended third-party beneficiaries in respect of the rights afforded it under the Servicing Agreement and each master servicer under a Non-Lead Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note under this Agreement and the Servicing Agreement; and
(ix) each master servicer and special servicer under any depositor in an other Securitization in responding Non-Lead Servicing Agreement shall be a third-party beneficiary of the Servicing Agreement with respect to comments from all provisions therein expressly relating to compensation, reimbursement or indemnification of such master servicer or special servicer, as the Commission case may be, and the provisions regarding anycoordination of Advances.
Appears in 3 contracts
Samples: Co Lender Agreement, Co Lender Agreement (COMM 2016-Dc2 Mortgage Trust), Co Lender Agreement (COMM 2016-Ccre28 Mortgage Trust)
Provisions Relating to Securitization. (a) For Subject to the terms of the Loan Agreement, for so long as an initial Holder Natixis or an Affiliate of an initial Holder Natixis (an the “Initial Note A-1 Holder”) is the owner of a NoteNote A-1, such the Initial Note A-1 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-1 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-1 among other New A-1 Notes; reducing the Interest Rates of such New A-1 Notes or severing the Note held by such Initial Holder A-1 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-1, provided that (i) the aggregate principal balance of such the New A-1 Notes following such amendments is no greater than the principal balance of the related Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same or a lower interest rate as the related Note A-1 prior to such amendments, (iii) all New A-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-1 Holder holding the New A-1 Notes shall notify the other Holders and the parties to the PSAs Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of such NoteNote A-1, (2) if any Note A-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) Each Lead For so long as Natixis or an Affiliate of Natixis (the “Initial Note A-2 Holder”) is the owner of Note A-2, the Initial Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the parties to the Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-2, (2) if Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(b).
(c) For so long as Natixis or an Affiliate of Natixis (the “Initial Note A-3 Holder”) is the owner of Note A-3, the Initial Note A-3 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-3 Notes”) reallocating the principal of Note A-3 among other New A-3 Notes; reducing the Interest Rates of such New A-3 Notes or severing the Note A-3 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-3, provided that (i) the aggregate principal balance of the New A-3 Notes following such amendments is no greater than the principal balance of Note A-3 prior to such amendments, (ii) all New A-3 Notes continue to have the same or a lower interest rate as the Note A-3 prior to such amendments, (iii) all New A-3 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-3 Holder holding the New A-3 Notes shall notify the parties to the Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-3, (2) if Note A-3 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(c).
(d) For so long as Natixis or an Affiliate of Natixis (the “Initial Note A-5 Holder”) is the owner of Note A-5, the Initial Note A-5 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-5 Notes”) reallocating the principal of Note A-5 among other New A-5 Notes; reducing the Interest Rates of such New A-5 Notes or severing the Note A-5 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-5, provided that (i) the aggregate principal balance of the New A-5 Notes following such amendments is no greater than the principal balance of Note A-5 prior to such amendments, (ii) all New A-5 Notes continue to have the same or a lower interest rate as the Note A-5 prior to such amendments, (iii) all New A-5 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-5 Holder holding the New A-5 Notes shall notify the parties to the Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-5, (2) if Note A-5 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-5 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(d).
(e) Each Non-Lead Securitization Servicing Agreement to shall provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer master servicer and Trustee trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made.;
(iii) in the Master Servicer shall remit all payments received (or advanced) with respect to each event such Non-Lead NoteNote Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, net of and that in the Servicing Fee payable event that the funds received with respect to such Non-Lead Note and any other Excluded Amountare insufficient to cover such amounts, to the Holder of such Note on or prior to (x) the related master servicer will be required to pay the Master Servicer, Special Servicer Remittance Date or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (as defined herein)or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC Investor Reporting Package) pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advances;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and the Special Servicer under shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement shall include will be required to reimburse the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and Master Servicer, Special Servicer or Trustee under the Servicing StandardAgreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(viiv) The each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note Holders shall be entitled by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the same indemnity Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required provisions therein relating to (1) deliver the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be required to cause each other servicer and servicing function participant third party beneficiaries of the foregoing provisions.
(within the meaning of Items 1123 and 1122, respectively, of Regulation ABf) retained or engaged by it to deliver), in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in The Note A-1 Holder shall give each of the other PSAs as the parties to the applicable Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 Note A-4 PSA (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law, and (2) that will not also be a party to the extent applicable, to cooperate with any depositor in an other Note A-1 PSA) notice of the Note A-1 Securitization in responding writing (which may be by e-mail) not less than 5 business days’ prior to comments from the Commission regarding anyNote A-1 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-1 PSA and the identity of the Controlling Class Representative under such Note A-1 PSA. In addition, after the Note A-1 Securitization Date, the Note A-1 Holder shall send a copy of the Note A-1 PSA to each of the parties to the Note A-4 PSA.
(g) The Note A-2 Holder shall give each of the parties to the Note A-4 PSA (that will not also be a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by e-mail) not less than 5 business days’ prior to the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to each of the parties to the Note A-4 PSA.
(h) The Note A-3 Holder shall give each of the parties to the Note A-4 PSA (that will not also be a party to the Note A-3 PSA) notice of the Note A-3 Securitization in writing (which may be by e-mail) not less than 5 business days’ prior to the Note A-3 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-3 PSA and the identity of the Controlling Class Representative under such Note A-3 PSA. In addition, after the Note A-3 Securitization Date, the Note A-3 Holder shall send a copy of the Note A-3 PSA to each of the parties to the Note A-4 PSA.
(i) The Note A-5 Holder shall give each of the parties to the Note A-4 PSA (that will not also be a party to the Note A-5 PSA) notice of the Note A-5 Securitization in writing (which may be by e-mail) not less than 5 business days’ prior to the Note A-5 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-5 PSA and the identity of the Controlling Class Representative under such Note A-5 PSA. In addition, after the Note A-5 Securitization Date, the Note A-5 Holder shall send a copy of the Note A-5 PSA to each of the parties to the Note A-4 PSA.
Appears in 3 contracts
Samples: Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-P3), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2016-Nxs5), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2015-Nxs4)
Provisions Relating to Securitization. (a) For so long as an initial Holder or an Affiliate of an initial Holder (an “Initial Holder”) Note A-2 is not in a securitization, the owner of a Note, such Initial Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note held by such Initial Holder A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-2, provided that (i) the aggregate principal balance of such the New A-2 Notes following such amendments is no greater than the principal balance of the related Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the related Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the other Holders and the parties to the PSAs Note A-1 PSA and the Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of such NoteNote A-2, (2) if any Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) Each Non-Lead Note Holder shall cause the Lead Securitization Servicing Agreement to shall provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer and master servicer or Trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that party is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided such party is not also a party to the Note A-2 PSA).
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the Master Servicer shall provide the other servicers written notice of such determination within two Business Days after such determination was made;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to each any Non-Lead Note, net of the its Servicing Fee payable with respect to such Note and any other Excluded Amountapplicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee, to the Non-Lead Holder of such Note on or prior to the related applicable Master Servicer Remittance Date (as defined herein)Date;
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective master servicer under a Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC CREFC® Investor Reporting Package) ® pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advancesa monthly basis;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), to the parties to any Non-Lead Servicing Agreement, at its own expense, in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs Servicing Agreements as the parties to the applicable each Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, each Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the Trustee for any prior Securitization a copy of the Lead Securitization Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the Trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and with respect to the Lead Servicers, upon prior written request, market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization. As used in this Agreement, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (2Regulation AB), 17 C.F.R. §§ 229.1100-229.1125, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the United States Securities and Exchange Commission (the “Commission”) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time, in each case as effective from time to time as of the compliance dates specified therein. The Master Servicer, any primary servicer and the Special Servicer, upon prior written request, shall each be required to provide certification and indemnification to each Certifying Person with respect to the Xxxxxxxx-Xxxxx Certification (or analogous terms) as such terms are defined in the related Non-Lead Servicing Agreements;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Servicing Agreement shall include the duty to service each Non-Lead Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(vii) any late collections received by the Master Servicer from the Borrower for which a P&I Advance has already been paid by a master servicer or trustee under a Non-Lead Servicing Agreement shall be remitted by the Master Servicer to such master servicer or trustee under a Non-Lead Servicing Agreement, as applicable, within one Business Day of receipt of properly identified funds; provided, however, that to the extent applicableany such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to cooperate remit such later collections to the Non-Lead Master Servicer within one Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two Business Days of receipt of properly identified funds;
(viii) the Non-Lead Note Holders are intended third-party beneficiaries in respect of the rights afforded it under the Servicing Agreement and each master servicer under a Non-Lead Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note under this Agreement and the Servicing Agreement; and
(ix) each master servicer and special servicer under any depositor in an other Securitization in responding Non-Lead Servicing Agreement shall be a third-party beneficiary of the Servicing Agreement with respect to comments from all provisions therein expressly relating to compensation, reimbursement or indemnification of such master servicer or special servicer, as the Commission case may be, and the provisions regarding anycoordination of Advances.
Appears in 2 contracts
Samples: Co Lender Agreement (CFCRE 2016-C4 Mortgage Trust), Co Lender Agreement (CFCRE 2016-C3 Mortgage Trust)
Provisions Relating to Securitization. (a) New Notes. For so long as an initial Holder DBAG or an Affiliate of DBAG or GACC or an initial Holder Affiliate of GACC (an “Initial Note Holder”) is the owner of a Noteany Notes, such Initial Note Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes (“Amended Notes”) or additional notes (in either case “New Notes”) reallocating the principal of the Note or Notes held by such Initial Holder that it owns (but in no case any Note that it does not then own) among other New Notes; reducing the Interest Rates of such Amended Notes and New Notes or severing the a Note held by such Initial Holder into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such Notethe Note or Notes being amended or created, provided that (i) the aggregate principal balance of such the Amended Notes and New Notes following such amendments is no greater than the principal balance of the related Note Amended Notes and New Notes prior to such amendments, (ii) all New Notes continue to have the same interest rate as the related Amended Note of which it was a part prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis with the Amended Notes and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder holding the New Notes shall notify the each other Holders and Holder, as applicable, and, if any other Note has been included in a securitization, the parties to the PSAs under each applicable PSA, in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of such a Note, (2) if any a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this Section 18(a). The Initial Note Holder whose Note is being reallocated or split pursuant to this Section 18(a) shall reimburse the other Holders for all costs and expenses incurred by the other Holders in connection with the reallocation or split.
(b) Each Non-Lead Note Holder shall cause the Lead Securitization Servicing Agreement to shall provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer and master servicer or Trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made.;
(iii) in the event such Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17 and funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Lead Securitization PSA shall:
(i) provide that the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) provide that if the Master Servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the Master Servicer shall provide the other servicers written notice of such determination within two Business Days after such determination was made;
(iii) provide that the Master Servicer shall remit all payments received (or advanced) with respect to each any Non-Lead Note, net of the its Servicing Fee payable with respect to such Note and any other Excluded Amountapplicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee, to the Non-Lead Holder of such Note on or prior to the related applicable Master Servicer Remittance Date (as defined herein)Date;
(iv) with respect to each other Note provide that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) make available to each of the respective master servicer under a Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC CREFC® Investor Reporting Package) ® pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advancesa monthly basis;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), to the parties to any Non-Lead Servicing Agreement, at its own expense, in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs Servicing Agreements as the parties to the applicable each Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, each Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the Trustee for any prior Securitization a copy of the Lead Securitization Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the Trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and with respect to the Lead Servicers, upon prior written request, market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization. As used in this Agreement, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (2Regulation AB), 17 C.F.R. §§ 229.1100-229.1125, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the United States Securities and Exchange Commission (the “Commission”) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time, in each case as effective from time to time as of the compliance dates specified therein. The Master Servicer, any primary servicer and the Special Servicer, upon prior written request, shall each be required to provide certification and indemnification to each Certifying Person with respect to the Xxxxxxxx-Xxxxx Certification (or analogous terms) as such terms are defined in the related Non-Lead Servicing Agreements;
(vi) provide that the servicing duties of each of the Master Servicer and Special Servicer under the Servicing Agreement shall include the duty to service each Non-Lead Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(vii) provide that, with respect to any/each Non-Lead Note, the Master Servicer shall withdraw from the related Collection Account and remit to the Holder of the Non-Lead Note, within one (1) Business Day of receipt of properly identified funds, any amounts that represent late collections or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to any third party in accordance with this Agreement), unless such amount would otherwise be included in the monthly remittance to the Holder of such Non-Lead Note for such month; provided, however, that to the extent applicableany such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to cooperate remit such later collections to the Non-Lead Master Servicer within one Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two Business Days of receipt of properly identified funds;
(viii) provide that the Non-Lead Note Holders are intended third-party beneficiaries in respect of the rights afforded it under the Servicing Agreement and each master servicer under a Non-Lead Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note under this Agreement and the Servicing Agreement;
(ix) provide that each master servicer and special servicer under any depositor Non-Lead Servicing Agreement shall be a third-party beneficiary of the Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such master servicer or special servicer, as the case may be, and the provisions regarding coordination of Advances;
(x) provide that it shall not be amended in an other Securitization in responding a manner that materially and adversely affects the rights of the Non-Lead Note Holders without their consent; and
(xi) satisfy Xxxxx’x rating methodology related to comments from the Commission regarding anypermitted investments and eligible accounts applicable to securities rated “Aaa” by Xxxxx’x.
Appears in 2 contracts
Samples: Co Lender Agreement (CD 2016-Cd1 Mortgage Trust), Co Lender Agreement (DBJPM 2016-C3 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an initial any Initial Note Holder or an Affiliate of an initial Holder thereof (an each, a “Initial HolderResizing Entity”) is the owner of a any Note (each, an “Owned Note”), such Initial Holder Resizing Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case each case, as applicable “New Notes”) reallocating the principal of the an Owned Note or Notes held by to such Initial Holder among other New Notes; reducing the Mortgage Interest Rates of such New Notes or severing the an Owned Note held by such Initial Holder into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such Owned Note, provided that (i) the aggregate principal balance of such all outstanding New Notes following such amendments is no greater than the aggregate principal balance of the related Owned Note prior to such amendments, (ii) all New Notes continue to have the same or a lower interest rate as the related Note Notes prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Resizing Entity holding the New Notes shall notify the other Holders Lead Note Holder, the Master Servicer, the Special Servicer, the Certificate Administrator and the parties to the PSAs Trustee in writing of such modified allocations and principal amounts. If the Lead Note Holder so requests, the Resizing Entity holding the New Notes (and any subsequent holder of such Notes) shall execute a confirmation of the continuing applicability of this Agreement to the New Notes, as so modified. Except for the foregoing reallocation and for modifications pursuant to the Lead Securitization Servicing Agreement, no Note may be modified or amended without the consent of its holder and the consent of the holder of each other Note. In connection with the foregoingforegoing (provided the conditions set forth in clauses (i) through (iv) above are satisfied, with respect to clauses (1i) through (iv), as certified by the Resizing Entity, on which certification the Master Servicer can rely), the Master Servicer is hereby authorized and directed to execute amendments to the Mortgage Loan Agreement Documents and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders Holders, as applicable, solely for the purpose of reflecting such reallocation of principal or such severing and that each New Note shall be a “Note” hereunder and for purposes of such Note, (2) if adding and modifying any Note is severed into “component” notes, such component notes definitions related thereto. Rating Agency Confirmation shall each have their same rights as not be required for any amendments to this Agreement required to facilitate the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition terms of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notesthis paragraph 18(a).
(b) Each Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide that as follows (and, and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) the applicable Master Servicer and or Trustee for such Securitization shall be required to notify the master servicer, special servicer provide written notice to each Non-Lead Master Servicer and trustee of each other Securitization of the amount Non-Lead Trustee of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made within two (2) Business Days of making such advance; and;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property AdvanceAdvance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide the servicers under any other PSA each Non-Lead Master Servicer written notice of such determination, together with supporting evidence for such determination, within 2 Business Days determination promptly after such determination was made.made together with such reports that the Master Servicer delivered to the Special Servicer or Trustee in connection with notification of its determination of nonrecoverability;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to each any Non-Lead Note, net of the Servicing Fee Fees payable to the Master Servicer and Special Servicer with respect to such Note Non-Lead Note, and any other Excluded Amountapplicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder of such Note on or prior to by the related Master Servicer Remittance Date (as defined herein)for the Non-Lead Note;
(iv) with respect to each other any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees or cause to deliver be delivered or make available to the Master Servicer for delivery) to each of the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective related Non-Lead Master Servicers, Servicer all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC CREFC® Investor Reporting PackagePackage (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement on to the earlier of (x) extent related to the date Mortgage Loan, the Mortgaged Property, such reports are required to be delivered to such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee and (y) by the Master Servicer Remittance Date (but in no event less than 2 Business Days after for the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I AdvancesNote;
(v) the Master Servicer and Special Servicer, as applicable, shall provide (and or the Special Servicer agrees to deliver shall provide to the Master Servicer to providefor provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees trustees and related Certificateholderscertificateholders) in accordance with the terms and provisions of this Agreement and Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The each Non-Lead Note Holders Holder shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The ; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer, the Special Servicer servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositors depositor of each other any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization Securitization) and each “certification certifying party” and depositor for their (i) its failure to deliver the items in clause (viii) below in a timely manner and for manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Securitization Trustee under Article X (or any Deficient Exchange Act Deliverable (as defined in article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or any similar term thereto) regardingcure period, and delivered by or on behalf of, such party;
(viii) (aiii) the Master Servicer, failure of any primary servicer, the Special Servicing Function Participant or Additional Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), in (other than a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs as the parties to the applicable Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law, and (2) to the extent applicable, to cooperate with any depositor in an other Securitization in responding to comments from the Commission regarding anyMortgage Loan Seller Sub-
Appears in 2 contracts
Samples: Co Lender Agreement (CD 2017-Cd3 Mortgage Trust), Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-P6)
Provisions Relating to Securitization. (a) New Notes. For so long as an initial a Note is not included in a Securitization, the Holder or an Affiliate of an initial Holder such Note (an the “Initial Resizing Holder”) is the owner of a Note, such Initial Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes (“Amended Notes”) or additional notes (in either case “New Notes”) reallocating the principal of the Note or Notes held by such Initial Holder that it owns (but in no case any Note that it does not then own) among other New Notes; reducing the Interest Rates of such Amended Notes and New Notes or severing the a Note held by such Initial Holder into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such Notethe Note or Notes being amended or created, provided that (i) the aggregate principal balance of such the Amended Notes and New Notes following such amendments is no greater than the principal balance of the related Note Amended Notes and New Notes prior to such amendments, (ii) all New Notes continue to have the same interest rate as the related Amended Note of which it was a part prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis with the Amended Notes and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Resizing Holder holding the New Notes shall notify the each other Holders and Holder, as applicable, and, if any other Note has been included in a securitization, the parties to the PSAs under each applicable PSA, in writing (which may be by email) of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of such a Note, (2) if any a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1Note, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes and (4) if Note A-1 is severed into “component” notes, another note (or one of the New Notes) may be substituted for Note A-1 in the definition of “Designated Holder” and “Directing Holder” and the definitions of “Lead Note” and “Lead Securitization” and “Non-Directing Holder” will be revised accordingly. Neither Rating Agency Confirmation nor approval of the Directing Holder shall be required for any amendments to this Agreement required to facilitate the terms of this Section 18(a). The Resizing Holder whose Note is being reallocated or split pursuant to this Section 18(a) shall reimburse the other Holders for all costs and expenses incurred by the other Holders in connection with the reallocation or split.
(b) Each Non-Lead Note Holder shall cause the Lead Securitization Servicing Agreement to shall provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer and master servicer or Trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made.;
(iii) in the Master Servicer shall remit all payments received (or advanced) with respect to each event such Non-Lead NoteNote Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, net of the Servicing Fee payable and funds received with respect to such Non-Lead Note and any other Excluded Amountare insufficient to cover such amounts, (x) the related master servicer will be required (to the Holder extent of such the related Non-Lead Note on Holder’s proportionate share) to pay the Master Servicer, Special Servicer or prior Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required (to the extent of the related Master Servicer Remittance Date Non-Lead Note Holder’s proportionate share) to reimburse the Lead Securitization Trust out of general funds in the collection account (as defined herein)or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC Investor Reporting Package) pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advances;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and the Special Servicer under shall be indemnified (as and to the same extent the Lead Securitization Servicing Agreement shall include Trust is required to indemnify each such party and to the duty to service the Mortgage Loan and all extent of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled Holder’s proportionate share) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to the same indemnity with respect to its servicing of the Mortgage Loan Loan, as applicable, and the Lead Note Holder is provided with respect to the Mortgage Loan master servicer under the related Non-Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall will be required to indemnify each “certification party” and the depositors of each other Securitization reimburse (to the same extent that they indemnify of the related Non-Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (aNote Holder’s proportionate share) the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be (to the extent of the related Non-Lead Note Holder’s proportionate share) a third party beneficiary under the Non-Lead Servicing Agreement with respect to any primary servicerprovisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be (to the extent of the related Non-Lead Note Holder’s proportionate share) a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer, the Special Servicer Servicer, the Trustee and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization Trust shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each third party beneficiaries of the other PSAs as the parties to the applicable Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law, and (2) to the extent applicable, to cooperate with any depositor in an other Securitization in responding to comments from the Commission regarding anyforegoing provisions.
Appears in 2 contracts
Samples: Co Lender Agreement (Morgan Stanley Capital I Trust 2019-H6), Co Lender Agreement (CF 2019-Cf1 Mortgage Trust)
Provisions Relating to Securitization. (a) New Notes. For so long as an initial a Note is not included in a Securitization, the Holder or an Affiliate of an initial Holder such Note (an the “Initial Resizing Holder”) is the owner of a Note, such Initial Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes (“Amended Notes”) or additional notes (in either case “New Notes”) reallocating the principal of the Note or Notes held by such Initial Holder that it owns (but in no case any Note that it does not then own) among other New Notes; reducing the Interest Rates of such Amended Notes and New Notes or severing the a Note held by such Initial Holder into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such Notethe Note or Notes being amended or created, provided that (i) the aggregate principal balance of such the Amended Notes and New Notes following such amendments is no greater than the principal balance of the related Note Amended Notes and New Notes prior to such amendments, (ii) all New Notes continue to have the same interest rate as the related Amended Note of which it was a part prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis with the Amended Notes and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Resizing Holder holding the New Notes shall notify the each other Holders and Holder, as applicable, and, if any other Note has been included in a securitization, the parties to the PSAs under each applicable PSA, in writing (which may be by email) of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of such a Note, (2) if any a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1Note, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes and (4) if Note A-1-1 is severed into “component” notes, another note (or one of the New Notes) may be substituted for Note A-1-1 in the definition of “Directing Holder” and the definitions of “Lead Note” and “Lead Securitization” and “Non-Directing Holders” will be revised accordingly. Neither Rating Agency Confirmation nor approval of the Directing Holder shall be required for any amendments to this Agreement required to facilitate the terms of this Section 18(a). The Resizing Holder whose Note is being reallocated or split pursuant to this Section 18(a) shall reimburse the other Holders for all costs and expenses incurred by the other Holder in connection with the reallocation or split.
(b) Each Non-Lead Note Holder agrees that (unless the Non-Lead Note and the Lead Note are included in the same Securitization) it shall cause the Non-Lead Securitization Servicing Agreement Agreements to provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):as follows:
(i) the applicable Master Servicer and master servicer or Trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made.;
(iii) in the Master Servicer shall remit all payments received (or advanced) with respect to each event such Non-Lead Note, net Note Holder is responsible for its proportionate share of the Servicing Fee payable any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17 and funds received with respect to such Non-Lead Note and any other Excluded Amountare insufficient to cover such amounts, to the Holder of such Note on or prior to (x) the related master servicer will be required to pay the Master Servicer, Special Servicer Remittance Date or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (as defined herein)or equivalent account) established under the related Non-Lead Servicing Agreements and (y) if the Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreements will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreements;
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC Investor Reporting Package) pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advances;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and the Special Servicer under shall be indemnified (as and to the same extent the Lead Securitization Servicing Agreement shall include the duty Trust is required to service indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement Loan, as applicable, and the master servicer under the related Non-Lead Securitization Servicing Agreement and Agreements will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing StandardAgreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreements;
(viiv) The each of the Trustee and the master servicer under the Non-Lead Servicing Agreements, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreements with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note Holders shall be entitled by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the same indemnity Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreements with respect to any provisions therein relating to (1) the Mortgage Loan as the Lead Note Holder is provided reimbursement of any nonrecoverable advances made with respect to the Mortgage Loan under the such Non-Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, Note by the Special Servicer and (it being understood that the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be Special Servicer is not required to indemnify each “certification party” make any Advances) and (2) the depositors indemnification of each the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other Securitization costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to the same extent that they indemnify the such Non-Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;Note; and
(viii) (avi) the Master Servicer, any primary servicerthe Special Servicer, the Special Servicer Trustee and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization Trust shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each third party beneficiaries of the other PSAs as the parties to the applicable Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law, and (2) to the extent applicable, to cooperate with any depositor in an other Securitization in responding to comments from the Commission regarding anyforegoing provisions.
Appears in 2 contracts
Samples: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2019-C53), Co Lender Agreement (UBS Commercial Mortgage Trust 2019-C17)
Provisions Relating to Securitization. (a) For so long as an initial Holder or an Affiliate of an initial Holder (an “Initial Holder”) Note A-2 is not in a securitization, the owner of a Note, such Initial Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note held by such Initial Holder A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-2, provided that (i) the aggregate principal balance of such the New A-2 Notes following such amendments is no greater than the principal balance of the related Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the related Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the other Holders and the parties to the PSAs Note A-1 PSA and the Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of such NoteNote A-2, (2) if any Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) Each Non-Lead Note Holder shall cause the Lead Securitization Servicing Agreement to shall provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer and master servicer or Trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made.;
(iii) in the Master Servicer shall remit all payments received (or advanced) with respect to each Non-Lead Note, net of the Servicing Fee payable with respect to such Note and any other Excluded Amount, to the Holder of such Note on or prior to the related Master Servicer Remittance Date (as defined herein);
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective Non-Lead Note Holders or, if event such Non-Lead Note Holder is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee responsible for its proportionate share of any Nonrecoverable Advances (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC Investor Reporting Package) pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advances;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to or any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties portion of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs as the parties to the applicable Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law, and (2) to the extent applicable, to cooperate with any depositor in an other Securitization in responding to comments from the Commission regarding anyNonrecoverable
Appears in 2 contracts
Samples: Co Lender Agreement (CFCRE 2016-C3 Mortgage Trust), Co Lender Agreement (COMM 2015-Lc23 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an initial Holder or an Affiliate of an initial Holder (an “Initial Holder”) Note A-2 is not in a securitization, the owner of a Note, such Initial Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note held by such Initial Holder A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-2, provided that (i) the aggregate principal balance of such the New A-2 Notes following such amendments is no greater than the principal balance of the related Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the related Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the other Holders and the parties to the PSAs Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of such NoteNote A-2, (2) if any Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) Each Non-Lead Note Holder shall cause the Lead Securitization Servicing Agreement to shall provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer and master servicer or Trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that party is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided such party is not also a party to the Note A-2 PSA).
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the Master Servicer shall provide the other servicers written notice of such determination within two Business Days after such determination was made;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to each any Non-Lead Note, net of the its Servicing Fee payable with respect to such Note and any other Excluded Amountapplicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee, to the Non-Lead Holder of such Note on or prior to the related applicable Master Servicer Remittance Date (as defined herein)Date;
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective master servicer under a Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC CREFC® Investor Reporting Package) ® pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advancesa monthly basis;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), to the parties to any Non-Lead Servicing Agreement, at its own expense, in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs Servicing Agreements as the parties to the applicable each Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, each Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the Trustee for any prior Securitization a copy of the Lead Securitization Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the Trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and, with respect to the Lead Servicers, upon prior written request, market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization. As used in this Agreement, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1125, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the United States Securities and Exchange Commission (2the “Commission”) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time, in each case as effective from time to time as of the compliance dates specified therein. The Master Servicer, any primary servicer and the Special Servicer, upon prior written request, shall each be required to provide certification and indemnification to each Certifying Person with respect to the Xxxxxxxx-Xxxxx Certification (or analogous terms) as such terms are defined in the related Non-Lead Servicing Agreements;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Servicing Agreement shall include the duty to service each Non-Lead Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(vii) any late collections received by the Master Servicer from the Borrower for which a P&I Advance has already been paid by a master servicer or Trustee under a Non-Lead Servicing Agreement shall be remitted by the Master Servicer to such master servicer or trustee under a Non-Lead Servicing Agreement, as applicable, within one Business Day of receipt of properly identified funds; provided, however, that to the extent applicableany such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to cooperate remit such later collections to the Non-Lead Master Servicer within one Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two Business Days of receipt of properly identified funds;
(viii) the Non-Lead Note Holders are intended third-party beneficiaries in respect of the rights afforded it under the Servicing Agreement and each master servicer under a Non-Lead Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note under this Agreement and the Servicing Agreement; and
(ix) each master servicer and special servicer under any depositor in an other Securitization in responding Non-Lead Servicing Agreement shall be a third-party beneficiary of the Servicing Agreement with respect to comments from all provisions therein expressly relating to compensation, reimbursement or indemnification of such master servicer or special servicer, as the Commission case may be, and the provisions regarding anycoordination of Advances.
Appears in 2 contracts
Samples: Co Lender Agreement (CFCRE 2016-C4 Mortgage Trust), Co Lender Agreement (COMM 2016-Ccre28 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an initial Holder or an Affiliate of an initial Holder (an “Initial Holder”) Note A-1 is not in a securitization, the owner of a Note, such Initial Note A-1 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-1 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-1 among other New A-1 Notes; reducing the Interest Rates of such New A-1 Notes or severing the Note held by such Initial Holder A-1 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-1, provided that (i) the aggregate principal balance of such the New A-1 Notes following such amendments is no greater than the principal balance of the related Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same or a lower interest rate as the related Note A-1 prior to such amendments, (iii) all New A-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-1 Holder holding the New A-1 Notes shall notify the other Holders and the parties to the PSAs Note A-2 PSA and the Note A-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of such NoteNote A-1, (2) if any Note A-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) Each Lead For so long as Note A-2 is not in a securitization, the Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the parties to the Note A-1 PSA and the Note A-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-2, (2) if Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(c) Each Non-Lead Securitization Servicing Agreement to shall provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable master servicer or Trustee for such Securitization shall be required to notify the master servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(d) The Note A-1 Holder shall give each of the parties to the Note A-2 PSA (that is not also a party to the Note A-1 PSA) notice of the Note A-1 Securitization in writing (which may be by email) prior to or promptly following the Note A-1 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-1 PSA and the identity of the Controlling Class Representative under such Note A-1 PSA. In addition, after the Note A-1 Securitization Date, the Note A-1 Holder shall send a copy of the Note A-1 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-3 PSA (provided such party is not also a party to the Note A-1 PSA).
(e) The Note A-2 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that party is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-3 PSA (provided such party is not also a party to the Note A-2 PSA).
(f) The Note A-1 PSA shall:
(i) provide that the Master Servicer and Trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) provide that if the Master Servicer or Trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 two Business Days after such determination was made.;
(iii) provide that the Master Servicer shall remit all payments received (or advanced) with respect to each any Non-Lead Note, net of the its Servicing Fee payable with respect to such Note and any other Excluded Amountapplicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee, to the Non-Lead Holder of such Note on or prior to the related applicable Master Servicer Remittance Date (as defined herein)Date;
(iv) with respect to each other Note provide that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective master servicer under a Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC CREFC® Investor Reporting Package) ® pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advancesa monthly basis;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), to the parties to any Non-Lead Servicing Agreement, at its own expense, in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs Servicing Agreements as the parties to the applicable each Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, each Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the Trustee for any prior Securitization a copy of the Lead Securitization Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the Trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and, with respect to the Lead Servicers, upon prior written request, market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization. As used in this Agreement, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1125, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the United States Securities and Exchange Commission (2the “Commission”) or by the staff of the Commission, or as may be provided by the Commission or its staff time to time, in each case as effective from time to time as of the compliance dates specified therein. The Master Servicer, any primary servicer and the Special Servicer, upon prior written request, shall each be required to provide certification and indemnification to each Certifying Person with respect to the Xxxxxxxx-Xxxxx Certification (or analogous terms) as such terms are defined in the related Non-Lead Servicing Agreements;
(vi) provide that the servicing duties of each of the Master Servicer and Special Servicer under the Servicing Agreement shall include the duty to service each Non-Lead Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(vii) provide that any late collections received by the Master Servicer from the Borrower for which a P&I Advance has already been paid by a master servicer or trustee under a Non-Lead Servicing Agreement shall be remitted by the Master Servicer to such master servicer or trustee under a Non-Lead Servicing Agreement, as applicable, within one Business Day of receipt of properly identified funds; provided, however, that to the extent applicableany such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to cooperate remit such later collections to the Non-Lead Master Servicer within one Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two Business Days of receipt of properly identified funds;
(viii) provide that the Non-Lead Note Holders are intended third-party beneficiaries in respect of the rights afforded it under the Servicing Agreement and each master servicer under a Non-Lead Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note under this Agreement and the Servicing Agreement;
(ix) provide that each master servicer and special servicer under any depositor Non-Lead Servicing Agreement shall be a third-party beneficiary of the Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such master servicer or special servicer, as the case may be, and the provisions regarding coordination of Advances; and
(x) provide that it shall not be amended in an other Securitization in responding a manner that materially and adversely affects the rights of the Non-Lead Note Holders without their consent.
(xi) satisfy Xxxxx’x rating methodology related to comments from the Commission regarding anypermitted investments and eligible accounts applicable to securities rated “Aaa” by Xxxxx’x.
Appears in 2 contracts
Samples: Co Lender Agreement (CFCRE 2016-C4 Mortgage Trust), Co Lender Agreement (CFCRE 2016-C3 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an initial Holder or an Affiliate of an initial Holder (an “Initial Holder”) is the owner of a Note, such Initial The Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New A-2 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note held by such Initial Holder A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-2, provided that (i) the aggregate principal balance of such the New A-2 Notes following such amendments is no greater than the principal balance of the related original Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same interest rate as the related original Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder entity holding the New A-2 Notes shall notify the other Holders and the parties to the PSAs Servicing Agreement and Non-Lead Servicing Agreement in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all either of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of such NoteNote A-2, (2) if any Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes.
(b) Each Lead Note Holder shall cause ; provided, however, that for the Lead Securitization Servicing Agreement to provide that (andavoidance of doubt, no such amendment to the extent such provisions are not included in the Lead Securitization Servicing Mortgage Loan Documents and this Agreement they shall be deemed incorporated therein and made a part thereof):
(i) the applicable Master Servicer and Trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made within two Business Days of making such advance; and
(ii) if the Master Servicer determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide the servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, within 2 Business Days after such determination was made.
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to each Non-Lead Note, net of the Servicing Fee payable with respect to such Note and any other Excluded Amount, to the Holder of such Note on or prior to the related Master Servicer Remittance Date (as defined herein);
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by may require the Master Servicer to violate the Trustee (and by the Special Servicer Servicing Standard. Rating Agency Confirmation shall not be required for any amendments to the Master Servicer) under the Lead Securitization Servicing this Agreement (which shall include all reports constituting the CREFC Investor Reporting Package) pursuant required to facilitate the terms of this Section 21(a). The Holder whose Note is being reallocated or split pursuant to this Section 21(a) shall reimburse the Lead Securitization Servicing Agreement on other Holder for all costs and expenses incurred by the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but other Holder in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advances;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance connection with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement reallocation or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs as the parties to the applicable Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law, and (2) to the extent applicable, to cooperate with any depositor in an other Securitization in responding to comments from the Commission regarding anysplit.
Appears in 2 contracts
Samples: Co Lender Agreement (BMO 2024-5c5 Mortgage Trust), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2024-5c1)
Provisions Relating to Securitization. (a) New Notes. For so long as an initial a Note is not included in a Securitization, the Holder or an Affiliate of an initial Holder such Note (an the “Initial Resizing Holder”) is the owner of a Note, such Initial Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes (“Amended Notes”) or additional notes (in either case “New Notes”) reallocating the principal of the Note or Notes held by such Initial Holder that it owns (but in no case any Note that it does not then own) among other New Notes; reducing the Interest Rates of such Amended Notes and New Notes or severing the a Note held by such Initial Holder into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such Notethe Note or Notes being amended or created, provided that (i) the aggregate principal balance of such the Amended Notes and New Notes following such amendments is no greater than the principal balance of the related Note Amended Notes and New Notes prior to such amendments, (ii) all New Notes continue to have the same interest rate as the related Amended Note of which it was a part prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis with the Amended Notes and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Resizing Holder holding the New Notes shall notify the each other Holders and Holder, as applicable, and, if any other Note has been included in a securitization, the parties to the PSAs under each applicable PSA, in writing (which may be by email) of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of such a Note, (2) if any a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1Note, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes and (4) if the Lead Note is severed into “component” notes, another Note (or one of the New Notes) may be substituted for Note A-1 in the definition of “Directing Note” and the definitions of “Lead Note” and “Lead Securitization” and Non-Directing Holder” will be revised accordingly. Neither Rating Agency Confirmation nor approval of the Directing Holder shall be required for any amendments to this Agreement required to facilitate the terms of this Section 18(a). The Resizing Holder whose Note is being reallocated or split pursuant to this Section 18(a) shall reimburse the other Holders for all costs and expenses incurred by the other Holders in connection with the reallocation or split.
(b) Each Non-Lead Note Holder agrees that (if its Non-Lead Note is included in a Securitization other than the Lead Securitization) it shall cause the Non-Lead Securitization Servicing Agreement to provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):as follows:
(i) the applicable Master Servicer and master servicer or Trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made.;
(iii) in the Master Servicer shall remit all payments received (or advanced) with respect to each event such Non-Lead Note, net Note Holder is responsible for its proportionate share of the Servicing Fee payable any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17 and funds received with respect to such Non-Lead Note and any other Excluded Amountare insufficient to cover such amounts, to the Holder of such Note on or prior to (x) the related master servicer will be required to pay the Master Servicer, Special Servicer Remittance Date or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (as defined herein)or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC Investor Reporting Package) pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advances;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and the Special Servicer under shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement shall include will be required to reimburse the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and Master Servicer, Special Servicer or Trustee under the Servicing StandardAgreement, as applicable, for such amounts out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(viiv) The each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note Holders shall be entitled by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the same indemnity Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required provisions therein relating to (1) deliver the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (and shall be it being understood that the Special Servicer is not required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation ABmake any Advances) retained or engaged by it to deliver), in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs as the parties to the applicable Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law, and (2) to the extent applicableindemnification of the Special Servicer against any claims, to cooperate losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any depositor in an other Securitization in responding PSA and relating to comments from such Non-Lead Note; and
(vi) the Commission regarding anyMaster Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
Appears in 2 contracts
Samples: Co Lender Agreement (Benchmark 2018-B3 Commercial Mortgage Trust), Co Lender Agreement (BENCHMARK 2018-B2 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an initial Initial Note Holder or an its Affiliate of an initial Holder (an “Initial HolderNote Holder Entity”) is the owner of a Noteits Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of the Note or Notes held by such Initial Holder among other New Notes; reducing the Interest Rates of such New Notes its Note(s) or severing the Note held by such Initial Holder its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then then-outstanding principal balance of such Noteits Note(s), provided that (i) the aggregate principal balance of such the New Notes following such amendments is no greater than the principal balance of the related Note original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the related Note original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the parties to the PSAs applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of such NoteNote(s), (2) if any a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to if such original Note is Note A-1, only then the applicable Initial Note Holder shall designate one component may be designated as of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note) ”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes; provided, however, that for the avoidance of doubt, no such amendment to the Mortgage Loan Documents and this Agreement may require the Master Servicer to violate the Servicing Standard. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) Each The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide that as follows (and, and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) the applicable Master Servicer and or Trustee for such Securitization shall be required to notify the master servicer, special servicer provide written notice to each Non-Lead Master Servicer and trustee of each other Securitization of the amount Non-Lead Trustee of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made within two (2) Business Days of making such advance; and;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property AdvanceAdvance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide the servicers under any other PSA each Non-Lead Master Servicer written notice of such determination, together with supporting evidence for such determination, within 2 Business Days determination promptly after such determination was made.made together with such reports that the Master Servicer delivered to the Special Servicer or Trustee in connection with notification of its determination of nonrecoverability;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to each any Non-Lead Note, net of the Servicing Fee Fees payable to the Master Servicer and Special Servicer with respect to such Note Non-Lead Note, and any other Excluded Amountapplicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder of such Note on or prior to by the related Master Servicer Remittance Date (as defined herein)for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(x) below;
(iv) with respect to each other any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees or cause to deliver be delivered or make available to the Master Servicer for delivery) to each of the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective related Non-Lead Master Servicers, Servicer all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC CREFC® Investor Reporting PackagePackage (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement on to the earlier of (x) extent related to the date Mortgage Loan, the Mortgaged Property, such reports are required to be delivered to such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee and (y) by the Business Day following the Master Servicer Remittance Date (but in no event less than 2 Business Days after for the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I AdvancesNote;
(v) the Master Servicer and Special Servicer, as applicable, shall provide (and or the Special Servicer agrees to deliver shall provide to the Master Servicer to providefor provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees trustees and related Certificateholderscertificateholders) in accordance with the terms and provisions of this Agreement and Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The each Non-Lead Note Holders Holder shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The ; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer, the Special Servicer servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositors depositor of each other any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization Securitization) and each “certification certifying party” and depositor for their (i) its failure to deliver the items in clause (viii) below in a timely manner and for manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer and Servicer, the Lead Securitization Trustee, certificate administrator the Certificate Administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner, manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form 15ABS-15G, Form 10-K, Form 10D, 10-D and Form 8-K), and (ii) upon request, any other materials specified in each the related Non- Lead Securitization Servicing Agreement, in the case of the other PSAs clauses (i) and (ii), as the parties to related Non-Lead Depositor or the applicable Securitization may require related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with their its obligations under the Securities Act of 1933Act, as amended, Securities the Exchange Act of 1934 (including Rule 15Ga-1), as amendedRegulation AB and Form SF-3, and Regulation AB, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any other applicable lawNon-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an XXXXX-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an XXXXX-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable Xxxxxxxx-Xxxxx Certification with respect to a Non-Lead Securitization;
(ix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(x) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent applicableany such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to cooperate remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any depositor such sale, the Special Servicer shall provide notice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related securitization of the planned sale and such Non-Directing Holder’s opportunity to submit an other offer on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in responding any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to comments from the Commission regarding anyextent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, o
Appears in 2 contracts
Samples: Co Lender Agreement (BBCMS Mortgage Trust 2024-5c31), Co Lender Agreement (BMO 2024-5c8 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an initial Holder or an Affiliate of an initial Holder (an “Initial Holder”) Note A-2 is not in a securitization, the owner of a Note, such Initial Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note held by such Initial Holder A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-2, provided that (i) the aggregate principal balance of such the New A-2 Notes following such amendments is no greater than the principal balance of the related Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the related Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the other Holders and the parties to the PSAs Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of such NoteNote A-2, (2) if any Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) Each Non-Lead Note Holder shall cause the Lead Securitization Servicing Agreement to shall provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer and master servicer or Trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that party is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided such party is not also a party to the Note A-2 PSA).
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the Master Servicer shall provide the other servicers written notice of such determination within two Business Days after such determination was made;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to each any Non-Lead Note, net of the its Servicing Fee payable with respect to such Note and any other Excluded Amountapplicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee, to the Non-Lead Holder of such Note on or prior to the related applicable Master Servicer Remittance Date (as defined herein)Date;
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective master servicer under a Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC CREFC® Investor Reporting Package) ® pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advancesa monthly basis;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), to the parties to any Non-Lead Servicing Agreement, at its own expense, in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs Servicing Agreements as the parties to the applicable each Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, each Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the Trustee for any prior Securitization a copy of the Lead Securitization Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the Trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and, with respect to the Lead Servicers, upon prior written request, market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization. As used in this Agreement, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1125, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the United States Securities and Exchange Commission (2the “Commission”) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time, in each case as effective from time to time as of the compliance dates specified therein. The Master Servicer, any primary servicer and the Special Servicer, upon prior written request, shall each be required to provide certification and indemnification to each Certifying Person with respect to the Xxxxxxxx-Xxxxx Certification (or analogous terms) as such terms are defined in the related Non-Lead Servicing Agreements;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Servicing Agreement shall include the duty to service each Non-Lead Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(vii) any late collections received by the Master Servicer from the Borrower for which a P&I Advance has already been paid by a master servicer or Trustee under a Non-Lead Servicing Agreement shall be remitted by the Master Servicer to such master servicer or trustee under a Non-Lead Servicing Agreement, as applicable, within one Business Day of receipt of properly identified funds; provided, however, that to the extent applicableany such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to cooperate remit such later collections to the Non-Lead Master Servicer within one Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two Business Days of receipt of properly identified funds;
(viii) the Non-Lead Note Holders are intended third-party beneficiaries in respect of the rights afforded it under the Servicing Agreement and each master servicer under a Non-Lead Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note under this Agreement and the Servicing Agreement;
(ix) each master servicer and special servicer under any depositor Non-Lead Servicing Agreement shall be a third-party beneficiary of the Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such master servicer or special servicer, as the case may be, and the provisions regarding coordination of Advances;
(x) the Servicing Agreement shall not be amended in an a manner that materially and adversely affects the rights of the Non-Lead Note Holders without their consent;
(xi) Servicer Termination Events (or analogous term) with respect to the Master Servicer shall include the failure to timely remit payments to the Non-Lead Note Holders, which failure continues for two business days following the date on which such payment was to be made. Upon the occurrence of such a Servicer Termination Event by the Master Servicer affecting a Non-Lead Note Holder, if the Master Servicer is not otherwise terminated, the Trustee shall, upon the direction of the related Non-Lead Note Holder, require the appointment of a subservicer with respect to the Mortgage Loan; and
(xii) the Servicing Standard in the Servicing Agreement shall require, among other Securitization things, that each Servicer, in responding to comments from servicing the Commission regarding anyMortgage Loan, must take into account the interests of each Holder and act in the best interests and for the benefit of the Holders together with the Certificate holders of the Lead Securitization, as a collective whole as if such Holders and Certificate holders constituted a single lender.
Appears in 2 contracts
Samples: Co Lender Agreement (COMM 2016-Dc2 Mortgage Trust), Co Lender Agreement (COMM 2016-Ccre28 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an initial Holder Natixis or an Affiliate of an initial Holder Natixis (an the “Initial Note A-2 Holder”) is the owner of a NoteNote A-2, such the Initial Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note held by such Initial Holder A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-2, provided that (i) the aggregate principal balance of such the New A-2 Notes following such amendments is no greater than the principal balance of the related Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the related Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and and
(iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the other Holders and the parties to the PSAs Note A-1 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of such NoteNote A-2, (2) if any Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) Each Lead The Note Holder A-2 PSA shall cause the Lead Securitization Servicing Agreement to provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer master servicer and Trustee trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made.;
(iii) in the Master Servicer shall remit all payments received (or advanced) with respect to each event such Non-Lead NoteNote Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, net of and that in the Servicing Fee payable event that the funds received with respect to such Non-Lead Note and any other Excluded Amountare insufficient to cover such amounts, to the Holder of such Note on or prior to (x) the related master servicer will be required to pay the Master Servicer, Special Servicer Remittance Date or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (as defined herein)or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC Investor Reporting Package) pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advances;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and the Special Servicer under shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement shall include will be required to reimburse the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and Master Servicer, Special Servicer or Trustee under the Servicing StandardAgreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(viiv) The each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note Holders shall be entitled by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the same indemnity Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required provisions therein relating to (1) deliver the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (and shall be it being understood that the Special Servicer is not required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation ABmake any Advances) retained or engaged by it to deliver), in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs as the parties to the applicable Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law, and (2) to the extent applicableindemnification of the Special Servicer against any claims, to cooperate losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any depositor in an other Securitization in responding PSA and relating to comments from such Non-Lead Note; and
(vi) the Commission regarding anyMaster Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
Appears in 2 contracts
Samples: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2015-Nxs4), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2015-Nxs3)
Provisions Relating to Securitization. (a) For so long as an initial Holder or an Affiliate of an initial Holder (an “Initial Holder”) Note A-2 is not in a securitization, the owner of a Note, such Initial Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note held by such Initial Holder A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-2, provided that (i) the aggregate principal balance of such the New A-2 Notes following such amendments is no greater than the principal balance of the related Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the related Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the other Holders and the parties to the PSAs Note A-1 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of such NoteNote A-2, (2) if any Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) Each Non-Lead Note Holder shall cause the Lead Securitization Servicing Agreement to shall provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer and master servicer or Trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided such party is not also a party to the Note A-2 PSA).
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the Master Servicer shall provide the other servicers written notice of such determination within two Business Days after such determination was made;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to each any Non-Lead Note, net of the its Servicing Fee payable with respect to such Note and any other Excluded Amountapplicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee, to the Non-Lead Holder of such Note on or prior to the related applicable Master Servicer Remittance Date (as defined herein)Date;
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective master servicer under a Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC CREFC® Investor Reporting Package) ® pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advancesa monthly basis;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), to the parties to any Non-Lead Servicing Agreement, at its own expense, in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs Servicing Agreements as the parties to the applicable each Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, each Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the Trustee for any prior Securitization a copy of the Lead Securitization Servicing Agreement and each Lead Servicer will be required, upon prior written request and at the expense of the requesting party, to provide to the depositor and the Trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and with respect to the Lead Servicers, upon prior written request and at the expense of the requesting party, market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization. As used in this Agreement, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (2Regulation AB), 17 C.F.R. §§ 229.1100-229.1125, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the United States Securities and Exchange Commission (the “Commission”) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time, in each case as effective from time to time as of the compliance dates specified therein. The Master Servicer, any primary servicer and the Special Servicer, upon prior written request, shall each be required to provide certification and indemnification to each Certifying Person with respect to the Xxxxxxxx-Xxxxx Certification (or analogous terms) as such terms are defined in the related Non-Lead Servicing Agreements;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Servicing Agreement shall include the duty to service each Non-Lead Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement and in accordance with the Servicing Standard;
(vii) any late collections received by the Master Servicer from the Borrower for which a P&I Advance has already been paid by a master servicer or Trustee under a Non-Lead Servicing Agreement shall be remitted by the Master Servicer to such master servicer or Trustee under a Non-Lead Servicing Agreement, as applicable, within one Business Day of receipt of properly identified funds; provided, however, that to the extent applicableany such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to cooperate remit such later collections to the Non-Lead Master Servicer within one Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two Business Days of receipt of properly identified funds;
(viii) the Non-Lead Note Holders are intended third-party beneficiaries in respect of the rights afforded it under the Servicing Agreement and each master servicer under a Non-Lead Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note under this Agreement and the Servicing Agreement; and
(ix) each master servicer and special servicer under any depositor in an other Securitization in responding Non-Lead Servicing Agreement shall be a third-party beneficiary of the Servicing Agreement with respect to comments from all provisions therein expressly relating to compensation, reimbursement or indemnification of such master servicer or special servicer, as the Commission case may be, and the provisions regarding anycoordination of Advances.
Appears in 2 contracts
Samples: Co Lender Agreement (COMM 2016-Ccre28 Mortgage Trust), Co Lender Agreement (CSAIL 2016-C5 Commercial Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an initial Holder RMF or an Affiliate of an initial Holder (an “Initial Holder”) RMF is the owner of a NoteNote A-2, such Initial the Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note held by such Initial Holder A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-2, provided that (i) the aggregate principal balance of such the New A-2 Notes following such amendments is no greater than the principal balance of the related Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the related Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the other Holders and the parties to the PSAs Note A-1 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of such NoteNote A-2, (2) if any Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) Each Non-Lead Note Holder shall cause the Lead Securitization Servicing Agreement to shall provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer and master servicer or Trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating
(1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall give the Depositor, the Master Servicer and the Special Servicer under the Note A-1 PSA (provided such party is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA.
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the Master Servicer shall provide the other servicers written notice of such determination within two Business Days after such determination was made;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to each any Non-Lead Note, net of the its Servicing Fee payable with respect to such Note and any other Excluded Amountapplicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee, to the Non-Lead Holder of such Note on or prior to the related applicable Master Servicer Remittance Date (as defined herein)Date;
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective master servicer under a Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC CREFC® Investor Reporting Package) ® pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advancesa monthly basis;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), to the parties to any Non-Lead Servicing Agreement, at its own expense, in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs Servicing Agreements as the parties to the applicable each Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, each Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the Trustee for any prior Securitization a copy of the Lead Securitization Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the Trustee for any other Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and, with respect to the Lead Servicers (at the expense of the requesting party), upon prior written request, market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization. As used in this Agreement, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the United States Securities and Exchange Commission (2the “Commission”) in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506,1,631 (Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by the Commission or its staff time to time. The Master Servicer, any primary servicer and the Special Servicer, upon prior written request, shall each be required to provide certification and indemnification to each Certifying Person with respect to the extent Sxxxxxxx-Xxxxx Certification (or analogous terms) as such terms are defined in the related Non-Lead Servicing Agreements;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Servicing Agreement shall include the duty to service each Non-Lead Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(vii) any late collections received by the Master Servicer from the Borrower for which a P&I Advance has already been paid by a master servicer or trustee under a Non-Lead Servicing Agreement shall be remitted by the Master Servicer to such master servicer or Trustee under a Non-Lead Servicing Agreement, as applicable, within one Business Day of receipt thereof;
(viii) the Non-Lead Note Holders are intended third-party beneficiaries in respect of the rights afforded it under the Servicing Agreement and each master servicer under a Non-Lead Servicing Agreement will be entitled to cooperate enforce the rights of the related Trustee with respect to such Non-Lead Note under this Agreement and the Servicing Agreement; and
(ix) each master servicer and special servicer under any depositor in an other Securitization in responding Non-Lead Servicing Agreement shall be a third-party beneficiary of the Servicing Agreement with respect to comments from all provisions therein expressly relating to compensation, reimbursement or indemnification of such master servicer or special servicer, as the Commission case may be, and the provisions regarding anycoordination of Advances.
Appears in 1 contract
Samples: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2015-C31)
Provisions Relating to Securitization. (a) For so long as an initial Holder GACC or an Affiliate of an initial Holder GACC (an the “Initial Note A-1 Holder”) is the owner of a NoteNote A-1, such the Initial Note A-1 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-1 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-1 among other New A-1 Notes; reducing the Interest Rates of such New A-1 Notes or severing the Note held by such Initial Holder A-1 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-1, provided that (i) the aggregate principal balance of such the New A-1 Notes following such amendments is no greater than the principal balance of the related Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same or a lower interest rate as the related Note A-1 prior to such amendments, (iii) all New A-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and and
(iv) the Initial Note A-1 Holder holding the New A-1 Notes shall notify the other Holders and the parties to the PSAs Note A-2 PSA and the Note A-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of such NoteNote A-1, (2) if any Note A-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) Each Lead For so long as GACC or an Affiliate of GACC (the “Initial Note A-3 Holder”) is the owner of Note A-3, the Initial Note A-3 Holder shall cause have the Lead Securitization Servicing Agreement to provide that (andright, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):
(i) the applicable Master Servicer and Trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made within two Business Days of making such advance; and
(ii) if the Master Servicer determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide the servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, within 2 Business Days after such determination was made.
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to each Non-Lead Note, net of the Servicing Fee payable with respect to such Note and any other Excluded Amount, to the Holder of such Note on or prior to the related Master Servicer Remittance Date (as defined herein);
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC Investor Reporting Package) pursuant subject to the terms of the Lead Securitization Servicing Agreement on Mortgage Loan Documents, to cause the earlier Borrower to execute amended and restated notes or additional notes (in either case “New A-3 Notes”) reallocating the principal of Note A-3 among other New A-3 Notes; reducing the Interest Rates of such New A-3 Notes or severing the Note A-3 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-3, provided that (xi) the date aggregate principal balance of the New A-3 Notes following such reports are required to be delivered amendments is no greater than the principal balance of Note A-3 prior to such Trustee amendments, (ii) all New A-3 Notes continue to have the same or a lower interest rate as the Note A-3 prior to such amendments, (iii) all New A-3 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (yiv) the Initial Note A-3 Holder holding the New A-3 Notes shall notify the parties to the Note A-1 PSA and the Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer Remittance Date is hereby authorized to execute amendments to the Loan Agreement and this Agreement (but in no event less than 2 Business Days after or to amend and restate the Mortgage Loan due date); including Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such information in reallocation of principal, reduction of Interest Rates or such severing of Note A-3, (2) if Note A-3 is severed into “component” notes, such component notes shall each have their same rights as the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advances;
respective original Note and (v3) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each definition of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan term “Securitization” and all of the Notes on behalf of related defined terms may be amended (and new terms added, as necessary) to reflect the Holders (including the respective Trustees and related Certificateholders) in accordance with New A-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliverparagraph 18(b), in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs as the parties to the applicable Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law, and (2) to the extent applicable, to cooperate with any depositor in an other Securitization in responding to comments from the Commission regarding any.
Appears in 1 contract
Samples: Co Lender Agreement (COMM 2015-Ccre26 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an initial Holder BSP or an Affiliate of an initial Holder BSP (an “Initial Note A-2 Holder”) is the owner of a NoteNote A-2, such Initial Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New A-2 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note held by such Initial Holder A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-2, provided that (i) the aggregate principal balance of such the New A-2 Notes following such amendments is no greater than the principal balance of the related original Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same interest rate as the related original Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder entity holding the New A-2 Notes shall notify the other Holders and the parties to the PSAs Servicing Agreement and Non-Lead Servicing Agreement in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all either of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of such NoteNote A-2, (2) if any Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this Section 21(a). The Holder whose Note is being reallocated or split pursuant to this Section 21(a) shall reimburse the other Holder for all costs and expenses incurred by the other Holder in connection with the reallocation or split.
(b) Each The Non-Lead Note Holder shall cause the Lead Securitization Servicing Agreement to shall provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer master servicer and Trustee trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made;
(iii) in the event the Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 20, and funds received with respect to the Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Lead Trustee to pay itself from the Lead Securitization Trust’s general account then the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Lead Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Lead Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to the Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to the Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall provide the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) (provided such party is not also a party to the Note A-1 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) provided such party is not also a party to the Note A-1 PSA.
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the Master Servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to each the Non-Lead Note, net of the its Servicing Fee payable with respect to such Note and any other Excluded Amountapplicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee, to the Non-Lead Note Holder of such Note on or prior to the related applicable Master Servicer Remittance Date (as defined herein)Date;
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver make available to the Master Servicer for delivery) to each of master servicer under the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC CREFC® Investor Reporting Package) ® pursuant to the terms of the Lead Securitization Servicing Agreement on a monthly basis on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the applicable Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I AdvancesDate;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), to the parties to the Non-Lead Servicing Agreement, at its own expense, in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs Servicing Agreements as the parties to the applicable Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, the Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the trustee for any prior Securitization a copy of the Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and with respect to the Lead Servicers, upon prior written request, market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization. As used in this Agreement, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1125, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the United States Securities and Exchange Commission (the “Commission”) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time, in each case as effective from time to time as of the compliance dates specified therein. The Master Servicer, any primary servicer and the Special Servicer, upon prior written request, shall each be required to provide certification and indemnification to each Certifying Person with respect to the Xxxxxxxx-Xxxxx Certification (or analogous terms) as such terms are defined in the Non-Lead Servicing Agreement;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Servicing Agreement shall include the duty to service the Non-Lead Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(vii) the Master Servicer shall withdraw from the related Collection Account and remit to the Holder of the Non-Lead Note, within two (2) Business Days of receipt of properly identified funds, any amounts that represent late collections or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to any third party in accordance with this Agreement), unless such amount would otherwise be included in the monthly remittance to the Holder of such Non-Lead Note for such month; provided, however, that to the extent any such amounts are received before 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections or principal prepayments to the Non-Lead Master Servicer within one Business Day of receipt of properly identified funds;
(viii) the Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Servicing Agreement and each master servicer under a Non-Lead Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note under this Agreement and the Servicing Agreement;
(ix) each master servicer and special servicer under any Non-Lead Servicing Agreement shall be a third-party beneficiary of the Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such master servicer or special servicer, as the case may be, and the provisions regarding coordination of Advances;
(x) it shall not be amended in a manner that materially and adversely affects the rights of the Non-Lead Note Holder without their consent; and
(xi) satisfy Xxxxx’x rating methodology as of the closing date of the Lead Securitization related to permitted investments and eligible accounts applicable to securities rated “Aaa” by Xxxxx’x;
(xii) in connection with (A) any amendment of the Servicing Agreement, a party to such Servicing Agreement is required to provide a copy of the executed amendment to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement (which may be by e-mail), together with a copy of such amendment in electronic format, no later than the effective date of such amendment, and (2B) the termination, resignation and/or replacement of the Master Servicer or Special Servicer under the Servicing Agreement, the replacement “master servicer” or replacement “special servicer”, as applicable, is required to provide to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof;
(xiii) “servicer termination events” (or any analogous term under the Servicing Agreement) include customary market termination events with respect to failure to make advances, failure to remit payments to the Non-Lead Note Holder as required, failure to deliver (or cause to be delivered) materials or information required in order for the Non-Lead Note Holder or the depositor under the Non-Lead Servicing Agreement to timely comply with its obligations under the Exchange Act, the Securities Act or Form SF-3, and for rating agency triggers with respect to any Certificates, subject to customary grace periods (provided that, in the case of failures related to the securities laws, such grace periods will not cause a depositor under the Non-Lead Servicing Agreement to fail to comply with the applicable provisions of such securities laws); and
(xiv) if the Non-Lead Note becomes the subject of an “asset review” under the Non-Lead Servicing Agreement, the applicable parties to the Servicing Agreement are required to reasonably cooperate with the related asset representations reviewer or other applicable party to the Non-Lead Servicing Agreement in connection with such asset review, including with respect to providing access to related underlying documents to the extent applicable, the asset representations reviewer or such other applicable party to cooperate with any depositor in an other Securitization in responding to comments the Non-Lead Servicing Agreement has not obtained such documents from the Commission regarding anyNon-Lead Note Holder and such documents are in the possession of the applicable party to the Servicing Agreement.
(e) If any provision required to be included in the Note A-2 PSA is not included therein as required in this Agreement, each Holder agrees that each such provision shall be deemed to be incorporated as a provision of and made a part of the Note A-2 PSA.
Appears in 1 contract
Samples: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2021-C59)
Provisions Relating to Securitization. (a) For so long as an initial Holder BSP or an Affiliate of an initial Holder BSP (an “Initial Note A-2 Holder”) is the owner of a NoteNote A-2, such Initial Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New A-2 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note held by such Initial Holder A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-2, provided that (i) the aggregate principal balance of such the New A-2 Notes following such amendments is no greater than the principal balance of the related original Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same interest rate as the related original Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder entity holding the New A-2 Notes shall notify the other Holders and the parties to the PSAs Servicing Agreement and Non-Lead Servicing Agreement in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all either of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of such NoteNote A-2, (2) if any Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this Section 21(a). The Holder whose Note is being reallocated or split pursuant to this Section 21(a) shall reimburse the other Holder for all costs and expenses incurred by the other Holder in connection with the reallocation or split.
(b) Each The Non-Lead Note Holder shall cause the Lead Securitization Servicing Agreement to shall provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer master servicer and Trustee trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made;
(iii) in the event the Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 20, and funds received with respect to the Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Lead Trustee to pay itself from the Lead Securitization Trust’s general account then the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Lead Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Lead Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to the Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to the Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall provide the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) (provided such party is not also a party to the Note A-1 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) provided such party is not also a party to the Note A-1 PSA.
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the Master Servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to each the Non-Lead Note, net of the its Servicing Fee payable with respect to such Note and any other Excluded Amountapplicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee, to the Non-Lead Note Holder of such Note on or prior to the related applicable Master Servicer Remittance Date (as defined herein)Date;
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver make available to the Master Servicer for delivery) to each of master servicer under the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC CREFC® Investor Reporting Package) ® pursuant to the terms of the Lead Securitization Servicing Agreement on a monthly basis on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the applicable Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I AdvancesDate;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), to the parties to the Non-Lead Servicing Agreement, at its own expense, in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs Servicing Agreements as the parties to the applicable Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, the Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the trustee for any prior Securitization a copy of the Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and with respect to the Lead Servicers, upon prior written request, market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization. As used in this Agreement, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1125, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the United States Securities and Exchange Commission (the “Commission”) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time, in each case as effective from time to time as of the compliance dates specified therein. The Master Servicer, any primary servicer and the Special Servicer, upon prior written request, shall each be required to provide certification and indemnification to each Certifying Person with respect to the Xxxxxxxx-Xxxxx Certification (or analogous terms) as such terms are defined in the Non-Lead Servicing Agreement;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Servicing Agreement shall include the duty to service the Non-Lead Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(vii) the Master Servicer shall withdraw from the related Collection Account and remit to the Holder of the Non-Lead Note, within two (2) Business Days of receipt of properly identified funds, any amounts that represent late collections or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to any third party in accordance with this Agreement), unless such amount would otherwise be included in the monthly remittance to the Holder of such Non-Lead Note for such month; provided, however, that to the extent any such amounts are received before 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections or principal prepayments to the Non-Lead Master Servicer within one Business Day of receipt of properly identified funds;
(viii) the Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Servicing Agreement and each master servicer under a Non-Lead Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note under this Agreement and the Servicing Agreement;
(ix) each master servicer and special servicer under any Non-Lead Servicing Agreement shall be a third-party beneficiary of the Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such master servicer or special servicer, as the case may be, and the provisions regarding coordination of Advances;
(x) it shall not be amended in a manner that materially and adversely affects the rights of the Non-Lead Note Holder without their consent; and
(xi) satisfy Xxxxx’x rating methodology as of the closing date of the Lead Securitization related to permitted investments and eligible accounts applicable to securities rated “Aaa” by Moody’s;
(xii) in connection with (A) any amendment of the Servicing Agreement, a party to such Servicing Agreement is required to provide a copy of the executed amendment to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement (which may be by e-mail), together with a copy of such amendment in electronic format, no later than the effective date of such amendment, and (2B) the termination, resignation and/or replacement of the Master Servicer or Special Servicer under the Servicing Agreement, the replacement “master servicer” or replacement “special servicer”, as applicable, is required to provide to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof;
(xiii) “servicer termination events” (or any analogous term under the Servicing Agreement) include customary market termination events with respect to failure to make advances, failure to remit payments to the Non-Lead Note Holder as required, failure to deliver (or cause to be delivered) materials or information required in order for the Non-Lead Note Holder or the depositor under the Non-Lead Servicing Agreement to timely comply with its obligations under the Exchange Act, the Securities Act or Form SF-3, and for rating agency triggers with respect to any Certificates, subject to customary grace periods (provided that, in the case of failures related to the securities laws, such grace periods will not cause a depositor under the Non-Lead Servicing Agreement to fail to comply with the applicable provisions of such securities laws); and
(xiv) if the Non-Lead Note becomes the subject of an “asset review” under the Non-Lead Servicing Agreement, the applicable parties to the Servicing Agreement are required to reasonably cooperate with the related asset representations reviewer or other applicable party to the Non-Lead Servicing Agreement in connection with such asset review, including with respect to providing access to related underlying documents to the extent applicable, the asset representations reviewer or such other applicable party to cooperate with any depositor in an other Securitization in responding to comments the Non-Lead Servicing Agreement has not obtained such documents from the Commission regarding anyNon-Lead Note Holder and such documents are in the possession of the applicable party to the Servicing Agreement.
(e) If any provision required to be included in the Note A-2 PSA is not included therein as required in this Agreement, each Holder agrees that each such provision shall be deemed to be incorporated as a provision of and made a part of the Note A-2 PSA.
Appears in 1 contract
Samples: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2021-C60)
Provisions Relating to Securitization. (a) For so long as an initial Holder Ladder or GACC or an Affiliate of an initial Holder thereof (an “Initial Note Holder”) is the owner of a Note (each, an “Owned Note”), such Initial Note Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of the related Owned Note or Notes held by to such Initial Holder among other New Notes; reducing the Interest Rates of such New Notes or severing the related Owned Note held by (or such Initial Holder New Notes) into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such the related Owned Note, or New Notes, as applicable, provided that (i) the aggregate principal balance of such New Notes following such amendments is no greater than the principal balance of the related Note Owned Note, or New Notes, as applicable, prior to such amendments, (ii) all New Notes continue to have the same interest rate as the related Owned Note (or such New Notes) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and Agreement, (iv) the Initial Note Holder holding the such New Notes shall notify the other Holders and the parties to the PSAs Lead Securitization in writing of such modified allocations and principal amounts, and (v) the execution of such amendments and New Notes shall not violate the Servicing Standard. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of such the related Owned Note, or New Notes, as applicable,, (2) if any an Owned Note or New Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes, as applicable. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a). The Initial Note Holder whose Owned Note or New Note is being reallocated or split pursuant to this Section 18(a) shall reimburse the other Holders for all costs and expenses incurred by the other Holders in connection with the reallocation or split.
(b) Each Lead each of the Note Holder A-1-B PSA, the Note A-2-A PSA, the Note A-2-B PSA, the Note A-3 PSA, the Note A-4-B PSA, the Note A-5 PSA and the Note A-6 PSA shall cause the Lead Securitization Servicing Agreement to provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer and Trustee master servicer or trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made.;
(iii) in the event such Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer, Lead Securitization certificate administrator, Lead Securitization operating advisor or Lead Trustee, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer, Lead Securitization certificate administrator, Lead Securitization operating advisor or Lead Trustee to pay itself from the Lead Securitization Trust Fund’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to pay the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer, the Special Servicer and the non-lead trust will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer shall remit all payments received or the Lead Trustee, and (or advanced2) clause (v) below and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note;
(v) each of the Indemnified Parties shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each of such Indemnified Parties in respect of other mortgage loans in the Lead Securitization Trust pursuant to the terms of Lead Securitization Servicing Agreement) by the securitization trust holding such Non-Lead Note, net against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with servicing and administration of the Servicing Fee payable Mortgage Loan (or, with respect to such Note and any other Excluded Amountthe Lead Securitization operating advisor, incurred in connection with the provision of services for the Mortgage Loan) under the Lead Servicing Agreement (collectively, the “Indemnified Items”) to the Holder extent of its pro rata share of such Note on or prior Indemnified Items, and to the extent amounts on deposit in the “Serviced Pari Passu Companion Loan Custodial Account” are insufficient for reimbursement of such amounts, the related Non-Lead Master Servicer Remittance Date will be required to reimburse each of the applicable Indemnified Parties for its pro rata share of the insufficiency out of general funds in the collection account (as defined hereinor equivalent account) established under such Non-Lead Servicing Agreement; provided, however, that any Non-Lead Servicing Agreement may include limitations and conditions on the payment or reimbursement of Indemnified Items to the Lead Securitization operating advisor (including limitations and conditions with respect to the timing of such payments or reimbursements and the sources of funds for such payments or reimbursements);
(ivvi) with respect to each other Note that is held by a Securitization, the related Non-Lead Master Servicer agrees to deliver (and the Special Servicer agrees will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Lead Securitization operating advisor and Master Servicer for delivery(i) to each promptly following Securitization of the respective Non-Lead Note Holders or, if such Non-Lead Securitization Note, notice of the deposit of such Non-Lead Securitization Note is securitizedinto a Securitization Trust (which notice shall also provide contact information for the related Non-Lead Trustee, the respective certificate administrator, Non-Lead Master ServicersServicer, all reports required non-lead special servicer and the party designated to be delivered exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the executed Non- Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC Investor Reporting Package) pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (yii) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information notice of any subsequent change in the Master Servicer’s possession as is reasonably necessary for each identity of such Non-Lead Master Servicer or the party designated to determine exercise the recoverability rights of P&I Advances;
(v) the Master Servicer shall provide (and the Special Servicer agrees “Non-Controlling Note Holder” with respect to deliver to the Master Servicer to provide) to each such Non-Lead Securitization Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing under this Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance together with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standardrelevant contact information);
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, Servicer and the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other third party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each beneficiaries of the other PSAs as the parties to the applicable Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law, and (2) to the extent applicable, to cooperate with any depositor in an other Securitization in responding to comments from the Commission regarding anyforegoing provisions.
Appears in 1 contract
Samples: Co Lender Agreement (COMM 2015-Lc23 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an initial Holder or an Affiliate of an initial Holder (an “Initial Holder”) Note A-1 is not in a securitization, the owner of a Note, such Initial Note A-1 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-1 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-1 among other New A-1 Notes; reducing the Interest Rates of such New A-1 Notes or severing the Note held by such Initial Holder A-1 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-1, provided that (i) the aggregate principal balance of such the New A-1 Notes following such amendments is no greater than the principal balance of the related Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same or a lower interest rate as the related Note A-1 prior to such amendments, (iii) all New A-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-1 Holder holding the New A-1 Notes shall notify the other Holders and the parties to the PSAs Note A-2 PSA and the Note A-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of such NoteNote A-1, (2) if any Note A-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) Each Lead For so long as Note A-2 is not in a securitization, the Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the parties to the Note A-1 PSA and the Note A-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-2, (2) if Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(c) Each Non-Lead Securitization Servicing Agreement to shall provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable master servicer or Trustee for such Securitization shall be required to notify the master servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(d) The Note A-1 Holder shall give each of the parties to the Note A-2 PSA (that is not also a party to the Note A-1 PSA) notice of the Note A-1 Securitization in writing (which may be by email) prior to or promptly following the Note A-1 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-1 PSA and the identity of the Controlling Class Representative under such Note A-1 PSA. In addition, after the Note A-1 Securitization Date, the Note A-1 Holder shall send a copy of the Note A-1 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-3 PSA (provided such party is not also a party to the Note A-1 PSA).
(e) The Note A-2 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that party is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-3 PSA (provided such party is not also a party to the Note A-2 PSA).
(f) The Note A-1 PSA shall:
(i) provide that the Master Servicer and Trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) provide that if the Master Servicer or Trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 two Business Days after such determination was made.;
(iii) provide that the Master Servicer shall remit all payments received (or advanced) with respect to each any Non-Lead Note, net of the its Servicing Fee payable with respect to such Note and any other Excluded Amountapplicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee, to the Non-Lead Holder of such Note on or prior to the related applicable Master Servicer Remittance Date (as defined herein)Date;
(iv) with respect to each other Note provide that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective master servicer under a Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC CREFC® Investor Reporting Package) ® pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advancesa monthly basis;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), to the parties to any Non-Lead Servicing Agreement, at its own expense, in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs Servicing Agreements as the parties to the applicable each Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, each Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the Trustee for any prior Securitization a copy of the Lead Securitization Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the Trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and, with respect to the Lead Servicers, upon prior written request, market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization. As used in this Agreement, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1125, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the United States Securities and Exchange Commission (2the “Commission”) or by the staff of the Commission, or as may be provided by the Commission or its staff time to time, in each case as effective from time to time as of the compliance dates specified therein. The Master Servicer, any primary servicer and the Special Servicer, upon prior written request, shall each be required to provide certification and indemnification to each Certifying Person with respect to the Sxxxxxxx-Xxxxx Certification (or analogous terms) as such terms are defined in the related Non-Lead Servicing Agreements;
(vi) provide that the servicing duties of each of the Master Servicer and Special Servicer under the Servicing Agreement shall include the duty to service each Non-Lead Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(vii) provide that any late collections received by the Master Servicer from the Borrower for which a P&I Advance has already been paid by a master servicer or trustee under a Non-Lead Servicing Agreement shall be remitted by the Master Servicer to such master servicer or trustee under a Non-Lead Servicing Agreement, as applicable, within one Business Day of receipt of properly identified funds; provided, however, that to the extent applicableany such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to cooperate remit such later collections to the Non-Lead Master Servicer within one Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two Business Days of receipt of properly identified funds;
(viii) provide that the Non-Lead Note Holders are intended third-party beneficiaries in respect of the rights afforded it under the Servicing Agreement and each master servicer under a Non-Lead Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note under this Agreement and the Servicing Agreement;
(ix) provide that each master servicer and special servicer under any depositor Non-Lead Servicing Agreement shall be a third-party beneficiary of the Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such master servicer or special servicer, as the case may be, and the provisions regarding coordination of Advances; and
(x) provide that it shall not be amended in an other Securitization in responding a manner that materially and adversely affects the rights of the Non-Lead Note Holders without their consent.
(xi) satisfy Mxxxx’x rating methodology related to comments from the Commission regarding anypermitted investments and eligible accounts applicable to securities rated “Aaa” by Mxxxx’x.
Appears in 1 contract
Samples: Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-Gc36)
Provisions Relating to Securitization. (a) For so long as an initial Holder RMF or an Affiliate of an initial Holder (an “Initial Holder”) RMF is the owner of a NoteNote A-2, such Initial the Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note held by such Initial Holder A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-2, provided that (i) the aggregate principal balance of such the New A-2 Notes following such amendments is no greater than the principal balance of the related Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the related Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the other Holders and the parties to the PSAs Note A-1 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of such NoteNote A-2, (2) if any Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) Each Non-Lead Note Holder shall cause the Lead Securitization Servicing Agreement to shall provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer and master servicer or Trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating
(1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall give the Depositor, the Master Servicer and the Special Servicer under the Note A-1 PSA (provided such party is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA.
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the Master Servicer shall provide the other servicers written notice of such determination within two Business Days after such determination was made;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to each any Non-Lead Note, net of the its Servicing Fee payable with respect to such Note and any other Excluded Amountapplicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee, to the Non-Lead Holder of such Note on or prior to the related applicable Master Servicer Remittance Date (as defined herein)Date;
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective master servicer under a Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC CREFC® Investor Reporting Package) ® pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advancesa monthly basis;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), to the parties to any Non-Lead Servicing Agreement, at its own expense, in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs Servicing Agreements as the parties to the applicable each Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, each Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the Trustee for any prior Securitization a copy of the Lead Securitization Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the Trustee for any other Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and, with respect to the Lead Servicers (at the expense of the requesting party), upon prior written request, market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization. As used in this Agreement, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the United States Securities and Exchange Commission (2the “Commission”) in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506,1,631 (Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by the Commission or its staff time to time. The Master Servicer, any primary servicer and the Special Servicer, upon prior written request, shall each be required to provide certification and indemnification to each Certifying Person with respect to the extent Xxxxxxxx-Xxxxx Certification (or analogous terms) as such terms are defined in the related Non-Lead Servicing Agreements;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Servicing Agreement shall include the duty to service each Non-Lead Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(vii) any late collections received by the Master Servicer from the Borrower for which a P&I Advance has already been paid by a master servicer or trustee under a Non-Lead Servicing Agreement shall be remitted by the Master Servicer to such master servicer or Trustee under a Non-Lead Servicing Agreement, as applicable, within one Business Day of receipt thereof;
(viii) the Non-Lead Note Holders are intended third-party beneficiaries in respect of the rights afforded it under the Servicing Agreement and each master servicer under a Non-Lead Servicing Agreement will be entitled to cooperate enforce the rights of the related Trustee with respect to such Non-Lead Note under this Agreement and the Servicing Agreement; and
(ix) each master servicer and special servicer under any depositor in an other Securitization in responding Non-Lead Servicing Agreement shall be a third-party beneficiary of the Servicing Agreement with respect to comments from all provisions therein expressly relating to compensation, reimbursement or indemnification of such master servicer or special servicer, as the Commission case may be, and the provisions regarding anycoordination of Advances.
Appears in 1 contract
Samples: Co Lender Agreement (CSAIL 2016-C5 Commercial Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an initial Holder GACC or an Affiliate of an initial Holder GACC (an “the "Initial Note A-1 Holder”") is the owner of a NoteNote A-1, such the Initial Note A-1 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “"New A‑1 Notes”") reallocating the principal of the Note or Notes held by such Initial Holder A-1 among other New A-1 Notes; reducing the Interest Rates of such New A-1 Notes or severing the Note held by such Initial Holder A-1 into one or more further “"component” " notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-1, provided that (i) the aggregate principal balance of such the New A-1 Notes following such amendments is no greater than the principal balance of the related Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same or a lower interest rate as the related Note A-1 prior to such amendments, (iii) all New A‑1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and and
(iv) the Initial Note A-1 Holder holding the New A‑1 Notes shall notify the other Holders and the parties to the PSAs Note A-2 PSA and the Note A-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of such NoteNote A-1, (2) if any Note A-1 is severed into “"component” " notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “"Securitization” " and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes.
(b) Each Lead Note Holder . Rating Agency Confirmation shall cause the Lead Securitization Servicing Agreement to provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):
(i) the applicable Master Servicer and Trustee for such Securitization shall be required for any amendments to notify the master servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made within two Business Days of making such advance; and
(ii) if the Master Servicer determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide the servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, within 2 Business Days after such determination was made.
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to each Non-Lead Note, net of the Servicing Fee payable with respect to such Note and any other Excluded Amount, to the Holder of such Note on or prior to the related Master Servicer Remittance Date (as defined herein);
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports this Agreement required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC Investor Reporting Package) pursuant to facilitate the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due datethis paragraph 18(a); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advances;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(vii) The Non-Lead Note Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other PSAs as the parties to the applicable Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law, and (2) to the extent applicable, to cooperate with any depositor in an other Securitization in responding to comments from the Commission regarding any.
Appears in 1 contract
Samples: Co Lender Agreement (COMM 2015-Ccre25 Mortgage Trust)
Provisions Relating to Securitization. (a) For Subject to the terms of the Loan Agreement, for so long as an initial Holder Natixis or an Affiliate of an initial Holder Natixis (an the “Initial Note A-1 Holder”) is the owner of a NoteNote A-1, such the Initial Note A-1 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-1 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-1 among other New A-1 Notes; reducing the Interest Rates of such New A-1 Notes or severing the Note held by such Initial Holder A-1 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-1, provided that (i) the aggregate principal balance of such the New A-1 Notes following such amendments is no greater than the principal balance of the related Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same or a lower interest rate as the related Note A-1 prior to such amendments, (iii) all New A-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-1 Holder holding the New A-1 Notes shall notify the other Holders and the parties to the PSAs Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of such NoteNote A-1, (2) if any Note A-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) Each Lead For so long as Natixis or an Affiliate of Natixis (the “Initial Note A-2 Holder”) is the owner of Note A-2, the Initial Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the parties to the Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-2, (2) if Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(b).
(c) For so long as Natixis or an Affiliate of Natixis (the “Initial Note A-3 Holder”) is the owner of Note A-3, the Initial Note A-3 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-3 Notes”) reallocating the principal of Note A-3 among other New A-3 Notes; reducing the Interest Rates of such New A-3 Notes or severing the Note A-3 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-3, provided that (i) the aggregate principal balance of the New A-3 Notes following such amendments is no greater than the principal balance of Note A-3 prior to such amendments, (ii) all New A-3 Notes continue to have the same or a lower interest rate as the Note A-3 prior to such amendments, (iii) all New A-3 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-3 Holder holding the New A-3 Notes shall notify the parties to the Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-3, (2) if Note A-3 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(c).
(d) Each Non-Lead Securitization Servicing Agreement to shall provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer master servicer and Trustee trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made.;
(iii) in the Master Servicer shall remit all payments received (or advanced) with respect to each event such Non-Lead NoteNote Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, net of and that in the Servicing Fee payable event that the funds received with respect to such Non-Lead Note and any other Excluded Amountare insufficient to cover such amounts, to the Holder of such Note on or prior to (x) the related master servicer will be required to pay the Master Servicer, Special Servicer Remittance Date or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (as defined herein)or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC Investor Reporting Package) pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advances;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and the Special Servicer under shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement shall include will be required to reimburse the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and Master Servicer, Special Servicer or Trustee under the Servicing StandardAgreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(viiv) The each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note Holders shall be entitled by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the same indemnity Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required provisions therein relating to (1) deliver the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be required to cause each other servicer and servicing function participant third party beneficiaries of the foregoing provisions.
(within the meaning of Items 1123 and 1122, respectively, of Regulation ABe) retained or engaged by it to deliver), in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in The Note A-1 Holder shall give each of the other PSAs as the parties to the applicable Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 Note A-4 PSA (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law, and (2) that will not also be a party to the extent applicable, to cooperate with any depositor in an other Note A-1 PSA) notice of the Note A-1 Securitization in responding writing (which may be by e-mail) not less than 5 business days’ prior to comments from the Commission regarding anyNote A-1 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-1 PSA and the identity of the Controlling Class Representative under such Note A-1 PSA. In addition, after the Note A-1 Securitization Date, the Note A-1 Holder shall send a copy of the Note A-1 PSA to each of the parties to the Note A-4 PSA.
(f) The Note A-2 Holder shall give each of the parties to the Note A-4 PSA (that will not also be a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by e-mail) not less than 5 business days’ prior to the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to each of the parties to the Note A-4 PSA.
(g) The Note A-3 Holder shall give each of the parties to the Note A-4 PSA (that will not also be a party to the Note A-3 PSA) notice of the Note A-3 Securitization in writing (which may be by e-mail) not less than 5 business days’ prior to the Note A-3 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-3 PSA and the identity of the Controlling Class Representative under such Note A-3 PSA. In addition, after the Note A-3 Securitization Date, the Note A-3 Holder shall send a copy of the Note A-3 PSA to each of the parties to the Note A-4 PSA.
Appears in 1 contract
Samples: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2015-Nxs3)
Provisions Relating to Securitization. (a) For so long as an initial Holder GACC or an Affiliate of an initial Holder GACC (an the “Initial Note A-2 Holder”) is the owner of a NoteNote A-2, such the Initial Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of the Note or Notes held by such Initial Holder A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note held by such Initial Holder A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such NoteNote A-2, provided that (i) the aggregate principal balance of such the New A-2 Notes following such amendments is no greater than the principal balance of the related Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the related Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the other Holders and the parties to the PSAs Note A-1 PSA and the Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of such NoteNote A-2, (2) if any Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except that with respect to Note A-1, only one component may be designated as the Lead Note) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) Each Lead For so long as GACC or an Affiliate of GACC (the “Initial Note A-3 Holder”) is the owner of Note A-3, the Initial Note A-3 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-3 Notes”) reallocating the principal of Note A-3 among other New A-3 Notes; reducing the Interest Rates of such New A-3 Notes or severing the Note A-3 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-3, provided that (i) the aggregate principal balance of the New A-3 Notes following such amendments is no greater than the principal balance of Note A-3 prior to such amendments, (ii) all New A-3 Notes continue to have the same or a lower interest rate as the Note A-3 prior to such amendments, (iii) all New A-3 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-3 Holder holding the New A-3 Notes shall notify the parties to the Note A-1 PSA and the Note A-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-3, (2) if Note A-3 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(c) For so long as GACC or an Affiliate of GACC (the “Initial Note A-4 Holder”) is the owner of Note A-4, the Initial Note A-4 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-4 Notes”) reallocating the principal of Note A-4 among other New A-4 Notes; reducing the Interest Rates of such New A-4 Notes or severing the Note A-4 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-4, provided that (i) the aggregate principal balance of the New A-4 Notes following such amendments is no greater than the principal balance of Note A-4 prior to such amendments, (ii) all New A-4 Notes continue to have the same or a lower interest rate as the Note A-4 prior to such amendments, (iii) all New A-4 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-4 Holder holding the New A-4 Notes shall notify the parties to the Note A-1 PSA and the Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-4, (2) if Note A-4 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-4 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(b).
(d) Each Non-Lead Securitization Servicing Agreement to shall provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):that:
(i) the applicable Master Servicer and Trustee master servicer or trustee for such Securitization shall be required to notify the master servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made included in such Securitization within two Business Days of making such advance; and;
(ii) if the Master Servicer applicable master servicer, special servicer or trustee determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide the other servicers under any other PSA written notice of such determination, together with supporting evidence for such determination, determination within 2 Business Days after such determination was made.;
(iii) in the Master Servicer shall remit all payments received (or advanced) with respect to each event such Non-Lead NoteNote Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, net of and that in the Servicing Fee payable event that the funds received with respect to such Non-Lead Note and any other Excluded Amountare insufficient to cover such amounts, to the Holder of such Note on or prior to (x) the related master servicer will be required to pay the Master Servicer, Special Servicer Remittance Date or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (as defined herein)or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) with respect to each other Note that is held by a Securitization, the Master Servicer agrees to deliver (and the Special Servicer agrees to deliver to the Master Servicer for delivery) to each of the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicers, all reports required to be delivered by the Master Servicer to the Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all reports constituting the CREFC Investor Reporting Package) pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to be delivered to such Trustee and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for each such Non-Lead Master Servicer to determine the recoverability of P&I Advances;
(v) the Master Servicer shall provide (and the Special Servicer agrees to deliver to the Master Servicer to provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(vi) the servicing duties of each of the Master Servicer and the Special Servicer under shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with the any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement shall include will be required to reimburse the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective Trustees and related Certificateholders) in accordance with the terms and provisions of this Agreement and the Lead Securitization Servicing Agreement and Master Servicer, Special Servicer or Trustee under the Servicing StandardAgreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(viiv) The each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note Holders shall be entitled by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the same indemnity Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement. The Master Servicer, any primary servicer, the Special Servicer and the trustee, the certificate administrator and operating advisor under the Lead Securitization Servicing Agreement shall be required to indemnify each “certification party” and the depositors of each other Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;
(viii) (a) the Master Servicer, any primary servicer, the Special Servicer and the Lead Securitization Trustee, certificate administrator or other party acting as custodian for the Lead Securitization shall be required provisions therein relating to (1) deliver the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be required to cause each other servicer and servicing function participant third party beneficiaries of the foregoing provisions.
(within the meaning of Items 1123 and 1122, respectively, of Regulation ABe) retained or engaged by it to deliver), in a timely manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10K, Form 10D, Form 8K), and other materials specified in The Note A-2 Holder shall give each of the other PSAs as the parties to the applicable Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 Note A-1 PSA (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law, and (2) that will not also be a party to the extent applicable, to cooperate with any depositor in an other Note A-2 PSA) notice of the Note A-2 Securitization in responding writing (which may be by e-mail) not less than 5 business days’ prior to comments from the Commission regarding anyNote A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to each of the parties to the Note A-1 PSA.
(f) The Note A-3 Holder shall give each of the parties to the Note A-1 PSA (that will not also be a party to the Note A-3 PSA) notice of the Note A-3 Securitization in writing (which may be by e-mail) not less than 5 business days’ prior to the Note A-3 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-3 PSA and the identity of the Controlling Class Representative under such Note A-3 PSA. In addition, after the Note A-3 Securitization Date, the Note A-3 Holder shall send a copy of the Note A-3 PSA to each of the parties to the Note A-1 PSA.
(g) The Note A-4 Holder shall give each of the parties to the Note A-1/A-2 PSA (that will not also be a party to the Note A-4 PSA) notice of the Note A-4 Securitization in writing (which may be by e-mail) not less than 5 business days’ prior to the Note A-4 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-4 PSA and the identity of the Controlling Class Representative under such Note A-4 PSA. In addition, after the Note A-4 Securitization Date, the Note A-4 Holder shall send a copy of the Note A-4 PSA to each of the parties to the Note A-4 PSA.
Appears in 1 contract
Samples: Co Lender Agreement (COMM 2015-Ccre26 Mortgage Trust)