Rating Agency Confirmation (a) Notwithstanding the terms of any of the Mortgage Loan Documents or other provisions of this Agreement, if any action under any Mortgage Loan Documents or this Agreement requires a Rating Agency Confirmation or a written confirmation from a Rating Agency that any action thereunder or hereunder will not cause a downgrade, withdrawal or qualification of the then-current ratings on the Certificates as a condition precedent to such action, and if the party (the “Requesting Party”) required to obtain such Rating Agency Confirmation has (i) made a request to any Rating Agency for such Rating Agency Confirmation and (ii) within 10 Business Days of such request being posted on the 17g-5 Information Provider’s Website, such Rating Agency has not replied to such request or has responded in a manner that indicates that such Rating Agency is neither reviewing such request nor waiving the requirement for Rating Agency Confirmation, then (x) such Requesting Party shall be required to promptly request the related Rating Agency Confirmation again, and (y) if there is no response to either such Rating Agency Confirmation request within 5 Business Days of such second request, then (1) with respect to any condition in any Mortgage Loan Document requiring such Rating Agency Confirmation or any other matter under this Agreement relating to the servicing of the Mortgage Loan, the requirement to obtain Rating Agency Confirmation shall be considered not to apply with respect to such Rating Agency for such action at such time (as if such requirement did not exist for such matter at such time), other than such a requirement with respect to the replacement of the Servicer or Special Servicer, and (2) with respect to replacement of the Servicer or Special Servicer, such condition shall be deemed not to apply if, in the event Fitch is the non-responding Rating Agency, the replacement servicer has a commercial master servicer rating of at least “CMS3” from Fitch or the replacement special servicer has a commercial special servicer rating of at least “CSS3” from Fitch, as applicable. Any Rating Agency Confirmation request made by the Servicer, the Special Servicer, the Trustee or the Certificate Administrator, as applicable, pursuant to this Agreement, shall be made in writing (which may be in electronic form), which writing shall contain a cover page indicating the nature of the Rating Agency Confirmation request, and shall contain all back-up material the Servicer, the Special Servicer, the Trustee or the Certificate Administrator, as applicable, reasonably deems necessary for the Rating Agency to process such request. Such written Rating Agency Confirmation request shall be provided (in electronic format reasonably acceptable to the 17g-5 Information Provider) to the 17g-5 Information Provider, and the 17g-5 Information Provider shall post such request on the 17g-5 Information Provider’s Website in accordance with Section 8.14(b). Promptly following the Servicer’s or Special Servicer’s determination to take any action discussed in this Section 3.27 following any requirement to obtain a Rating Agency Confirmation being considered satisfied, the Servicer or Special Servicer, as applicable, shall provide electronic written notice to the 17g-5 Information Provider of the action taken for the particular item at such time, and the 17g-5 Information Provider shall post such notice on the 17g-5 Information Provider’s Website in accordance with Section 8.14(b).
(b) Notwithstanding the terms of the related Mortgage Loan Documents, the other provisions of this Agreement or the Co-Lender Agreement, with respect to any Companion Loan as to which there exists Companion Loan Securities, if any action relating to the servicing and administration of the Mortgage Loan or any Foreclosed Property (the “Relevant Action”) requires delivery of a Rating Agency Confirmation as a condition precedent to such action pursuant to this Agreement, then, except as set forth below in this paragraph, such action will also require delivery of a Companion Loan Rating Agency Confirmation as a condition precedent to such action from each Companion Loan Rating Agency. Each Companion Loan Rating Agency Confirmation shall be sought by the Servicer or Special Servicer, as applicable, depending on whichever such party is seeking the corresponding Rating Agency Confirmation(s) in connection with the Relevant Action. The requirement to obtain a Companion Loan Rating Agency Confirmation with respect to any Companion Loan Securities will be subject to, will be permitted to be waived by the Servicer and the Special Servicer on, and will be deemed not to apply on, the same terms and conditions applicable to obtaining Rating Agency Confirmations, as set forth in this Agreement; provided, that the Servicer or Special Servicer, as applicable, depending on which is seeking the subject Companion Loan Rating Agency Confirmation, shall forward to one or more of its counterpart (i.e., the master servicer or special servicer, as applicable), the 17g-5 Information Provider’s counterpart, or such other party or parties (as are agreed to by the Servicer or the Special Servicer, as applicable, and the applicable parties for the related Other Securitization Trust), at the expense of the Other Securitization Trust to the extent not borne by the Borrower, and in such format as the sender and recipient may reasonably agree, (i) the request for such Companion Loan Rating Agency Confirmation at approximately the same time that the request for Rating Agency Confirmation with respect to the applicable Relevant Action is sent to the 17g-5 Information Provider, (ii) all materials forwarded to the 17g-5 Information Provider under this Agreement in connection with seeking the Rating Agency Confirmation(s) for the applicable Relevant Action at approximately the same time that such materials are forwarded to the 17g-5 Information Provider, and (iii) any other materials that the applicable Companion Loan Rating Agency may reasonably request in connection with such Companion Loan Rating Agency Confirmation promptly following such request. The Servicer or the Special Servicer, as applicable, may (but is not obligated to) send the request for a Companion Loan Rating Agency Confirmation (and the related materials sent to the 17g-5 Information Provider’s counterpart in connection therewith) to the applicable Companion Loan Rating Agency following the earlier of (a) receipt of notification from the 17g-5 Information Provider’s counterpart that such information, report, notice or other document has been posted to the 17g-5 Information Provider counterpart’s website and (b) after 12:00 p.m. on the first Business Day following the date it has provided such information, report, notice or other document to the 17g-5 Information Provider. Each of the Servicer and the Certificate Administrator shall, promptly following receipt of written request from the Special Servicer, provide to the Special Servicer the contact information for the master servicer, the special servicer, the trustee, the certificate administrator and the 17g-5 Information Provider’s counterpart for the Other Securitization Trust, in each case solely to the extent known to it.
(c) To the extent it is permitted to do under the Mortgage Loan Agreement, the Servicer (if no Special Servicing Loan Event has occurred and is continuing) or the Special Servicer (during a Special Servicing Loan Event) shall, or shall require the Borrower to, obtain a Rating Agency Confirmation from the Rating Agency with respect to any of the following matters as set forth in the Mortgage Loan Agreement:
(i) an Approved Replacement Guarantor (as defined in the Mortgage Loan Agreement); and
(ii) a Transfer and Assumption (as defined in the Mortgage Loan Agreement);
Rating Agency Downgrade In the event that BSFP’s long-term unsecured and unsubordinated debt rating is withdrawn or reduced below “AA-” by S&P or its long-term unsecured and unsubordinated debt rating is withdrawn or reduced below “Aa3” by Moody’s (and together with S&P and Fitch, the “Swap Rating Agencies”, and such rating thresholds, “Approved Rating Thresholds”), then within 30 days after such rating withdrawal or downgrade, BSFP shall, subject to the Rating Agency Condition, at its own expense, either (i) cause another entity to replace BSFP as party to this Agreement that meets or exceeds the Approved Rating Thresholds and that is approved by Radian Insurance Inc. and Financial Guaranty Insurance Company (each a “NIMS Insurer” and collectively, the “NIMS Insurers”) (which approval shall not be unreasonably withheld) on terms substantially similar to this Agreement, (ii) obtain a guaranty of, or a contingent agreement of another person with the Approved Rating Thresholds, to honor, BSFP’s obligations under this Agreement; provided that such other person is approved by the NIMS Insurers, such approval not to be unreasonably withheld, (iii) post collateral satisfactory to each Swap Rating Agency and the NIMS Insurers which will be sufficient to restore the immediately prior ratings of the Certificates and any note insured by the NIMS Insurers, or (iv) establish any other arrangement satisfactory to the Swap Rating Agencies and the NIMS Insurers, which will be sufficient to restore the immediately prior ratings of the Certificates and any note insured by the NIMS Insurers. For purposes of this provision, “Rating Agency Condition” means, with respect to any particular proposed act or omission to act hereunder that the party acting or failing to act must consult with any of the Swap Rating Agencies then providing a rating of the Certificates and receive from the Swap Rating Agencies a prior written confirmation that the proposed action or inaction would not cause a downgrade or withdrawal of the then-current rating of the Certificates.
