Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder. (b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder. (c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder. (d) The Securitization Servicing Agreement shall contain provisions to the effect that: (i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement; (ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement; (iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and (iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto. (e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement. (f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions. (g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees. (h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that: (i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property); (ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement; (iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information); (iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and (v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions. (i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder. (j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 9 contracts
Samples: Agreement Between Noteholders (CF 2019-Cf3 Mortgage Trust), Agreement Between Noteholders (UBS Commercial Mortgage Trust 2019-C18), Agreement Between Noteholders (Benchmark 2019-B12 Mortgage Trust)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by pursuant to the Note A-1-1 Holder Interim Servicing Agreement and from and after the Securitization Date (except as otherwise set forth in Section 5(b2(f)), pursuant to the Securitization Servicing Agreement and, in each case, in accordance with this Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization Senior Note and Note C (and each Non-Lead Master Servicer shall not be required to advance monthly payments of principal and interest on in respect of the Notes other than the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing AgreementSenior Note) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Each of the Note B Holder acknowledges Holders and Note C Holders acknowledge that each a Senior Note Holder Noteholder may elect, in its sole discretion, to include the related its Senior Note in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such HolderSenior Noteholder, at such Senior Note HolderNoteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, the Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with and consent with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement and this Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization (and, prior to the occurrence of the Lead Securitization, the Master Servicer pursuant to the Interim Servicing Agreement and the Trustee under the Note C TA) as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement or the Interim Servicing Agreement and Note C TA (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreementtherein). In no event shall the Servicing Agreement require the Servicer be required to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder.
(b) In no event The Controlling Noteholder (or any Controlling Noteholder Representative appointed by it acting on its behalf) shall exercise the Note B Holder be entitled rights and powers granted to exercise any rights of the “directing holderControlling Holder”, “Directing Certificateholder” consulting class or any analogous class “Directing Holder” (or holder similar term) under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as with respect to the Controlling NoteholderMortgage Loan.
(c) The Securitization Servicing Agreement shall contain the Servicing Standard. In no event may the Securitization Servicing Agreement change the interest or principal allocable to, or the amount of any payments due to, the a Note B-1 B Holder or Note B-2 C Holder or materially increase the Controlling Noteholdersuch Note B Holder’s or Note C Holder’s obligations or materially decrease the Controlling Noteholdersuch Note B Holder’s or Note C Holder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement Note A-1 TSA shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders in accordance with Sections 3 and 4 hereof on the “master servicer remittance date” under the Securitization Servicing AgreementMaster Servicer Remittance Date;
(ii) the Note B Holder Holders and the Note C Holders shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person Note B Holder or Note C Holder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Securitization Servicing Agreement Trust that includes other Notes, including, but not limited to standard CREFC® reports, provided subject to limitations on information that if an interest in Note B or the may be made available to a Note B Holder or Note C Holder that is held by the a Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Non-Lead Senior Noteholders, the Note B Holder Holders and the Note C Holders (which consent may be withheld in a Non-Lead Senior Noteholder’s, Note B Holder’s or Note C Holder’s sole and absolute discretion) if such amendment would materially and adversely affect the Mortgage Loan or the such Non-Lead Senior Noteholder’s, Note B Holder’s or Note C Holder’s rights with respect thereto.;
(v) any inconsistency between the Servicing Agreement and this Agreement shall be governed by and determined in accordance with the terms of this Agreement; and
(vi) the respective rights and obligations of the Noteholders hereunder, including with respect to the making of payment to the Noteholders and the rights of the Noteholders to approve matters and make decisions hereunder, shall be recognized. In addition, the Note A-1 TSA shall contain the additional provisions set forth on Schedule I;
(e) Notwithstanding anything to the contrary contained in this Agreement, any Any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Lead Senior Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder Lead Senior Noteholder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement mutually agreeable to the Non-Lead Senior Noteholders, the Note B Holders and the Note C Holders that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note B Holders and the Note B HolderC Holders, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that (1) if any Non-Lead Senior Note is in a Securitization, then Rating Agency Confirmation shall have been obtained from each Rating Agency with respect to such subsequent servicing agreement and (2) until a replacement servicing agreement has been entered into, (x) the Note A-1-1 Holder Lead Senior Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, Loan and (y) the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by the Lead Senior Noteholder with the consent of the Note A-1-1 Holder B Holders and the Note C Holders and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If Upon the occurrence of the Note B Holder exercises its purchase option A-1 Securitization, the Lead Senior Noteholder shall give each other Noteholder (and the applicable servicer and trustee, if any other Note is in accordance with Section 12 hereof, upon a Securitization) notice of the Mortgage Loan being transferred Lead Securitization in writing (which may be by e-mail) prior to or promptly following the related Securitization Date. Such notice shall contain contact information for each of the parties to the related Securitization Servicing Agreement and the identity of the directing holder under such Securitization Servicing Agreement. In addition, after the closing of the Note B HolderA-1 Securitization, the Note B Holder related Lead Senior Noteholder shall be entitled to terminate send a copy of the related Securitization Servicing Agreement in its sole discretion without payment to each of any termination feesthe other Noteholders.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under contain the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisionsprovisions set forth in Schedule II.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 6 contracts
Samples: Co Lender Agreement (BBCMS Mortgage Trust 2020-C7), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2020-C56), Co Lender Agreement (Benchmark 2020-Ig1 Mortgage Trust)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by pursuant to the Note A-1-1 Holder Interim Servicing Agreement and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization Note (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable related Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Each Note B Holder acknowledges that each Senior of the Note Holder A Holders may elect, in its sole discretion, to include the related Senior applicable A Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such the applicable Note A Holder, at such Senior Note A Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder Noteholders set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder against any other Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder.
(b) In no event shall the any Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the such Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest or principal allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder B Holders or materially increase the Note B Holders’ or the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s or the Note B Holders’ rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) if an event of default under the Servicing Agreement has occurred (A) with respect to the Master Servicer under the Servicing Agreement that affects a Noteholder or any class of commercial mortgage securities backed by a Note, and the Master Servicer is not otherwise terminated under the Securitization Servicing Agreement, then a Note B Holder or its designees (if such Note B Holder is the Controlling Holder) shall be entitled to direct the Master Servicer to appoint a sub-servicer solely with respect to the Mortgage Loan (or if the Mortgage Loan is currently being sub-serviced, to replace the current sub-servicer, but only if such original sub-servicer is in default under the related sub-servicing agreement); and (B) the appointment (or replacement) of a sub-servicer with respect to the Mortgage Loan, as contemplated in clause (A) above, will in any event be subject to written confirmation from each Rating Agency that such appointment would not, in and of itself, cause a downgrade, qualification or withdrawal of the then-current ratings assigned to the securities issued in connection with any Securitization;
(ii) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(iii) the Master Servicer, any primary servicer, the Special Servicer and the Trustee, Certificate Administrator or other party acting as custodian for the Lead Securitization shall be required to 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, (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and all information to be included in reports (including, without limitation, Form ABS 15G, Form 10-K, Form 10-D and Form 8-K), and (ii) upon request, any other materials specified in the Note B Holder Non-Lead Servicing Agreement, in the case of clauses (i) and (ii), as the parties to each Non-Lead Securitization may reasonably require in order to comply with their obligations under the Securities Act and the Exchange Act (including Rule 15Ga-1) and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, the Lead Securitization Noteholder shall provide in a timely manner to the Non-Lead Depositor and the Non-Lead Trustee an executed copy of the Securitization Servicing Agreement in XXXXX-compatible format (but not later than one business day following the closing date of the Lead Securitization) and each Servicer under the Securitization Servicing Agreement will be required, upon prior written request, to provide to the Non-Lead Depositor and the Non-Lead Trustee 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 each case in a timely manner for inclusion in any disclosure document (or for filing under Form 8-K, as applicable) and with respect to such 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 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;
(iv) the Controlling Noteholder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provideprovide access to, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person the Controlling Noteholder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or the Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Lead Securitization Servicing Agreement Trust that includes other Notes but not limited to standard CREFC® reportsreports and Asset Status Reports, provided that if an interest in Note B the Controlling Noteholder or the related Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder Controlling Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Informationexcluded information” or analogous term under the Securitization Servicing Agreement;
(iiiv) with respect to any/each Non-Lead Securitization Note (other than any Non-Lead Securitization Note deposited into the Lead Securitization as to which payments shall be withdrawn and remitted as provided in the Servicing Agreement), the Master Servicer shall withdraw from the related Collection Account and remit to the Non-Lead Securitization Noteholder, within one (1) Business Day of receipt of properly identified funds, any amounts that represent late collections or principal prepayments on such Non-Lead Securitization 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 Non-Lead Securitization Noteholder; 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 or principal payments to the Non-Lead Master Servicer within two (2) Business Days of receipt of properly identified funds;
(vi) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(ivvii) each Non-Lead Master Servicer and Non-Lead Special Servicer shall be a third-party beneficiary of the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreementall provisions therein expressly relating to compensation, any obligation reimbursement or indemnification of the Servicer pursuant to the terms hereof shall be performed by the such Non-Lead Master Servicer or the Non-Lead Special Servicer, as applicablethe case may be, as set forth in and the Servicing Agreement.provisions regarding coordination of advances;
(fviii) At satisfy Xxxxx’x rating methodology as of the closing date of the Lead Securitization related to eligible accounts and permitted investments for a securitization rated “Aaa” by Moody’s, or otherwise acceptable to Moody’s;
(ix) in connection with (A) any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions amendment of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan a party to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into provide a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed amendment to each Non-Lead Servicing Agreement Depositor and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer one or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note more parties to the related Non-Lead Securitization Note Holder.
Servicing Agreement (jwhich 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 (B) In the event any filing 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 be made by any provide to each Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order and one or more parties to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.date of effectiveness thereof;
Appears in 6 contracts
Samples: Agreement Between Noteholders (Benchmark 2018-B1 Mortgage Trust), Agreement Between Noteholders (JPMDB Commercial Mortgage Securities Trust 2017-C7), Agreement Between Noteholders (JPMCC Commercial Mortgage Securities Trust 2017-Jp7)
Servicing. (a) Each Noteholder acknowledges Pursuant to Section 2, the Company, in its role as collection agent hereunder, shall allocate and agrees thatremit funds received from Customers for the benefit of the Initial Bond Issuer, subject the Initial Bond Trustee, the Additional Bond Issuer, the Additional Bond Trustee, the Buyer and the Receivables Purchasers, respectively, and shall control the movement of such funds out of the Deposit Accounts in each case to accordance with the terms of this Agreement. To the extent permitted under the Initial Indenture, the Mortgage Loan shall Additional Indenture or the Receivables Purchase Agreement, the Company may appoint a successor servicer or sub-servicer to act in any of its respective capacities under this Agreement so long as such successor servicer or sub-servicer has executed joinder documentation agreeing to act in such capacity and to be serviced prior to the Securitization Date under interim servicing arrangements as directed bound by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no the event shall that the Note B Holder be Initial Bond Trustee is entitled to and desires to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable toright, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by Initial Bond Agreements, to replace the Master Company as Initial Property Servicer, in the event that the Additional Bond Trustee is entitled to and desires to exercise its right, pursuant to the Additional Bond Agreements, to replace the Company as Additional Property Servicer, or in the event that the Receivables Purchasers are entitled to and desire to exercise their right to replace the Company as Receivables Servicer, and therefore to terminate the role of the Company as the Initial Property Servicer, as the Additional Property Servicer or the Special as Receivables Servicer, as applicable, hereunder, the party desiring to exercise such right shall promptly give written notice to the other parties hereto (the “Servicer Notice”) in accordance with the notice provisions of this Agreement and consult with the other parties with respect to the Person who would replace the Company in its capacity as set forth Initial Property Servicer, as Additional Property Servicer or as Receivables Servicer. Any successor to the Company in any of such capacities shall be agreed to by the Servicing Agreement.
Initial Bond Trustee, the Additional Bond Trustee and the Administrative Agent within ten (f10) At any time after Business Days of the Securitization Date that date of the Note A-1-1 is no longer Servicer Notice, and such successor shall be subject to satisfaction of the Initial Bonds Rating Agency Condition (as defined below) and the Additional Bonds Rating Agency Condition (as defined below) and otherwise satisfy the provisions of the Securitization Initial Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Additional Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate Receivables Agreements. For the final terms avoidance of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereofdoubt, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration removal of the Notes and Company as the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to Initial Property Servicer shall not automatically cause the Notes, and that in removal of the event that Company as the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Additional Property Servicer or as the Special Receivables Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) each the removal of the Indemnified Parties Company as the Additional Property Servicer shall be indemnified (as and to not automatically cause 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 Servicing Agreement and, in the case removal of the Lead Securitization TrustCompany as the Initial Property Servicer or as the Receivables Servicer, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master removal of the Company as the Receivables Servicer will be required to deliver to shall not automatically cause the Trustee, removal of the Certificate Administrator, Company as the Special Initial Property Servicer or as the Additional Property Servicer, and (iv) the Master roles of Initial Property Servicer, Additional Property Servicer and Receivables Servicer may be held by different Persons so long as each such Person has agreed to be bound by the Operating Advisor provisions of this Agreement. “Business Day” means any day other than a Saturday, Sunday, or any holiday for national banks or any New York banking corporation in Milwaukee, Wisconsin, New York, New York or the city in which the Corporate Trust Office (i) promptly following as defined in the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer Initial Indenture and the party designated Additional Indenture) is located. Any Person named as replacement collection agent in accordance with this Section 4 is referred to exercise herein as a “Replacement Collection Agent.” The parties hereto agree that any entity succeeding to the rights of the “Non-Controlling Note Holder” under Company in its capacity as Initial Property Servicer, Additional Property Servicer or as Receivables Servicer hereunder shall execute customary joinder documentation agreeing to act in such capacity and to be bound by the terms of this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 5 contracts
Samples: Indenture (WEPCo Environmental Trust Finance I, LLC), Indenture (WEPCo Environmental Trust Finance I, LLC), Indenture (WEPCo Environmental Trust Finance I, LLC)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject as further provided in each case to the terms Section 5 of this this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder Each Noteholder acknowledges that each Senior Note Holder other Noteholder may elect, in its sole discretion, to include the related Senior its Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, a securitizing Noteholder at such Senior Note Holderthe securitizing Noteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, the Special Servicer Servicer, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder against another Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) The then Controlling Noteholder shall be entitled to exercise any notice and consent rights of the “directing holder,” “directing certificateholder,” “controlling class,” “controlling class representative” or any analogous class or holder under the Servicing Agreement except to the extent such Noteholder is expressly prohibited from exercising such rights under the terms of this Agreement in its capacity as the Controlling Noteholder. In no event shall the Note B Holder any Junior Noteholder be entitled to exercise any rights of the “directing holder” ”, consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder such Junior Noteholder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may The Master Servicer shall be the Securitization master servicer of the Mortgage Loan, and from time to time it (or the Trustee, to the extent provided in the Servicing Agreement) (i) shall be required to make Servicing Advances with respect to the Mortgage Loan, subject to the terms of the Servicing Agreement change and this Agreement, and (ii) may be required to make P&I Advances on the interest allocable Lead Securitization Note, if and to the extent provided in the Servicing Agreement and this Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to reimbursement for a Servicing Advance, first from funds on deposit in the Collection Account or Companion Distribution Account for the Mortgage Loan that (in any case) represent amounts received on or in respect of the Mortgage Loan, and then, in the case of Nonrecoverable Servicing Advances, if such funds on deposit in the Collection Account or Companion Distribution Account with respect to the Mortgage Loan are insufficient, from general collections of the Lead Securitization as provided in the Servicing Agreement and from each Non-Lead Securitization Noteholder as provided below. The Master Servicer, the Special Servicer and the Trustee, as applicable, will be entitled to reimbursement for Advance Interest Amounts on a Servicing Advance or a Nonrecoverable Servicing Advance, in the manner and from the sources provided in the Servicing Agreement, including from general collections of the Lead Securitization and, in the case of Servicing Advances, from general collections of each Non-Lead Securitization as provided herein. To the extent the Master Servicer, the Special Servicer or the Trustee, as applicable, obtains funds from general collections of the Lead Securitization as a reimbursement for a Nonrecoverable Servicing Advance or any Advance Interest Amounts on a Servicing Advance or a Nonrecoverable Servicing Advance, each Non-Lead Securitization Noteholder (including from general collections or any other amounts from any Non-Lead Securitization Trust) shall be required to, promptly following notice from the Master Servicer, reimburse the Lead Securitization for its pro rata share of such Nonrecoverable Servicing Advance or Advance Interest Amounts (it being understood that the pro rata share payable by each Non-Lead Securitization Noteholder under this paragraph would be determined by allocating such Nonrecoverable Servicing Advance or Advance Interest Amount, as the case may be, first to the Junior Notes and then to the Senior Notes, in that order). A Non-Lead Master Servicer may be required to make P&I Advances on the related Non-Lead Securitization Note, from time to time, subject to the terms of the applicable Non-Lead Servicing Agreement, the Servicing Agreement and this Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to make their own recoverability determination with respect to a P&I Advance to be made on the Lead Securitization Note based on the information that they have on hand and in accordance with the Servicing Agreement. Each Non-Lead Master Servicer, Non-Lead Special Servicer and Non-Lead Trustee, as applicable, shall be entitled to make its own recoverability determination with respect to a P&I Advance to be made on the related Non-Lead Securitization Note based on the information that it has on hand and in accordance with the related Non-Lead Servicing Agreement. The Master Servicer and the Trustee, as applicable, and each Non-Lead Master Servicer and Non-Lead Trustee, as applicable, shall be required to notify the others of the amount of any payments due toits P&I Advance within two (2) Business Days of making such advance. If the Master Servicer, the Special Servicer or the Trustee, as applicable (with respect to the Lead Securitization Note) or a Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee, as applicable (with respect to the related Non-Lead Securitization Note), determines that a proposed P&I Advance, if made, would be non-recoverable or an outstanding P&I Advance is or would be non-recoverable, or if the Master Servicer, the Special Servicer or the Trustee, as applicable, subsequently determines that a proposed P&I Advance would be non-recoverable or an outstanding P&I Advance is or would be non-recoverable, then the Master Servicer or the Trustee (as provided in the Servicing Agreement, in the case of a determination of non-recoverability by the Master Servicer, the Special Servicer or the Trustee) or any Non-Lead Master Servicer or Non-Lead Trustee (as provided in the related Non-Lead Servicing Agreement, in the case of the a determination of non-recoverability by such Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee) shall notify the Master Servicer and the Trustee, or any Non-Lead Master Servicer and any Non-Lead Trustee, as the case may be, of the other Securitizations within two (2) business days of making such determination. Each of the Master Servicer, the Trustee, the related Non-Lead Master Servicer and the related Non-Lead Trustee, as applicable, will only be entitled to reimbursement for a P&I Advance and advance interest thereon that becomes non-recoverable first from the Collection Account or Companion Distribution Account from amounts allocable to the Note B-1 Holder or Note B-2 Holder or materially increase for which such P&I Advance was made, and then, if funds are insufficient, (i) in the Controlling Noteholder’s obligations or materially decrease case of the Controlling Noteholder’s rightsLead Securitization Note, remedies or protections hereunder or otherwise adversely affect from general collections of the Controlling Noteholder’s rights hereunderLead Securitization Trust, pursuant to the terms of the Servicing Agreement and (ii) in the case of any Non-Lead Securitization Note, from general collections of the related Securitization Trust, as and to the extent provided in the related Non-Lead Servicing Agreement.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing AgreementMaster Servicer Remittance Date;
(ii) the Note B Holder Controlling Noteholder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in a Junior Note B or the Note B Holder Junior Noteholder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder such Junior Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder Junior Noteholders if such amendment would materially and adversely affect the Mortgage Loan or the Note B HolderJunior Noteholder’s rights with respect thereto; and
(v) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, a Rating Agency Confirmation shall be provided with respect to the commercial mortgage pass-through certificates issued in connection with each Non-Lead Securitization Trust to the same extent provided with respect to the commercial mortgage pass-through certificates issued in connection with the Lead Securitization.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) Each Servicer shall be required pursuant to the Servicing Agreement to service the Mortgage Loan in accordance with the Servicing Standard, the terms of the Mortgage Loan Documents, the Servicing Agreement, this Agreement and applicable law, shall provide information to each Non-Lead Servicer to enable such Non-Lead Servicer to perform its servicing duties under the related Non-Lead Servicing Agreement and shall not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.
(g) At any time after the Securitization Date that the Note A-1-1 Mortgage Loan is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) Noteholders agree to cause the Mortgage Loan to be serviced by one or more servicers, each of which has been agreed upon by the Senior Noteholders and the Junior Noteholders, pursuant to a servicing agreement that contains has servicing provisions which are the same as or more favorable terms substantially similar to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a any Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; , provided, further, however, that until a replacement servicing agreement is in placehas been entered into, the actual servicing of Lead Securitization Noteholder shall cause the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred serviced pursuant to the Note B Holder, the Note B Holder shall be entitled to terminate provisions of the Servicing Agreement as if such agreement were still in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the full force and effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) , by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit Servicer in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries or by any Person appointed by the Lead Securitization Noteholder that is a qualified servicer meeting the requirements of the foregoing provisionsServicing Agreement.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 5 contracts
Samples: Agreement Between Noteholders (Bank of America Merrill Lynch Commercial Mortgage Trust 2017-Bnk3), Agreement Between Noteholders (Wells Fargo Commercial Mortgage Trust 2016-C37), Agreement Between Noteholders (Citigroup Commercial Mortgage Trust 2016-P6)
Servicing. (a) Each Noteholder acknowledges and JPM hereby agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and that from and after the Securitization Assignment Closing Date (except as otherwise set forth in Section 5(b)), pursuant it shall note the transfer of the applicable Mortgage Loans to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest Assignee in respect of the Notes other than the Notes included in the Lead Securitization (its books and each Non-Lead Master Servicer shall be required to advance monthly payments of principal records and interest on service the applicable Non-Lead Securitization Note pursuant to Mortgage Loans in accordance with the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related MLPWA (including without limitation Articles IV through XII as they relate to the maintenance of the Mortgaged Property servicing and maintenance and enforcement of the lien reconstitution of the Mortgage thereon, subject Loans). The Assignee shall be entitled to all of the rights and remedies of the Purchaser (as defined in the MLPWA) under the MLPWA for any failure of JPM to service the Mortgage Loans in accordance with the terms of the Securitization Servicing AgreementMLPWA. The Note B Holder acknowledges Assignee, JPM or CHF hereby agree that each Senior Note Holder may electfrom and after the Assignment Closing Date, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement parties will be bound by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect Amendment Reg AB with respect to the Mortgage Loan, provided, however, that Loans and the Servicer under the Securitization Servicing Agreement Amendment Reg AB shall have no further obligations be applicable to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing AgreementLoans. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder Assignee shall be entitled to terminate the Servicing Agreement in all of its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (rights and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established remedies under the Non-Lead Servicing Agreement Amendment Reg AB for the Non-Lead Securitization Note Holder’s pro rata share any failure of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due JPM or CHF to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established perform under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses Amendment Reg AB with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any Loans and JPM or CHF shall be entitled to all of the Indemnified Items to the extent of its pro rata share rights and remedies of such Indemnified Items, and to respective party under the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient Amendment Reg AB for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each any failure of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established Assignee to perform under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein Amendment Reg AB with respect to the Senior Notes will be allocated by Mortgage Loans. An account has been established as a Custodial Account pursuant to Section 4.04 of the Master Servicer between the Senior NotesMLPWA, pro ratadesignated as "Chase Home Finance LLC, as subservicer for JPMorgan Chase Bank, National Association, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect trust for Bank of a Non-Lead Securitization Note America, National Association, owner of various whole loan series P&I." Another separate account has been established as an Escrow Account pursuant to Section 4.06 of the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934MLPWA, designated as "Chase Home Finance LLC, as amendedsubservicer for JPMorgan Chase Bank, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor National Association, in trust for Bank of America, National Association, owner of various whole loan series and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.various mortgagors T&I."
Appears in 5 contracts
Samples: Assignment and Assumption Agreement, Mortgage Loan Purchase Agreement (Banc of America Funding 2006-6 Trust), Mortgage Loan Purchase Agreement (Banc of America Funding 2006-5 Trust)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case Borrower covenants to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal maintain or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to cause the servicing of the Mortgage Loan Loans to be maintained in accordance conformity with this Agreement and the Securitization Accepted Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee Practices in the Securitization industry for the same type of mortgage loans as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect the Mortgage Loans and in a manner at least equal in quality to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement)Borrower provides for other mortgage loans which it owns. In no the event that the preceding language is interpreted as constituting one or more servicing contracts, each such servicing contract shall terminate automatically upon the Servicing Agreement require earliest of (i) an Event of Default, (ii) the Servicer to enforce date on which all the rights Secured Obligations have been paid in full, or (iii) the transfer of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholderservicing approved by Borrower.
(b) In no event shall the Note B Holder be entitled to exercise If any rights of the “directing holder” consulting class Mortgage Loans are serviced by Borrower, (i) Borrower agrees that Agent is the collateral assignee of all servicing records, including but not limited to any and all servicing agreements, files, documents, records, data bases, computer tapes, copies of computer tapes, proof of insurance coverage, insurance policies, appraisals, other closing documentation, payment history records, and any other records relating to or any analogous class or holder under evidencing the Securitization Servicing Agreement except servicing of Mortgage Loans (the "SERVICING RECORDS"), and (ii) Borrower grants Agent, for the benefit of Lender, a security interest in all servicing fees and rights relating to the extent Mortgage Loans and all Servicing Records to secure the Note B Holder is given obligation of Borrower or its designee to service the Mortgage Loans in conformity with this Section and any other obligation of Borrower to Lender. Borrower covenants to safeguard such rights expressly under Servicing Records and to deliver them promptly to Agent or its designee (including the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling NoteholderCustodian) at Agent's request.
(c) In no event may If any of the Securitization Mortgage Loans are serviced by a third party servicer (such third party servicer, the "SERVICER"), Borrower (i) shall provide a copy of the servicing agreement to Agent, which shall be in form and substance acceptable to Agent (the "SERVICING AGREEMENT"), (ii) shall provide a Servicer Notice and Agreement to the Servicer substantially in the form of Exhibit E hereto (a "SERVICER NOTICE AND AGREEMENT") and shall cause the Servicer to acknowledge and agree to the same and (iii) hereby irrevocably assigns to Lender and such Lender's successors and assigns all right, title and interest of Borrower in, to and under, and the benefits of, and Servicing Agreement change with respect to the interest allocable to, Mortgage Loans. Any successor or assignee of a Servicer shall be approved in writing by Lender and shall acknowledge and agree to a Servicer Notice and Agreement prior to such successor's assumption of servicing obligations with respect to the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunderMortgage Loans.
(d) The Securitization Servicing Agreement If the servicer of the Mortgage Loans is Borrower or an Affiliate of Borrower, Borrower shall contain provisions provide to Agent a letter from the Servicer, as the case may be, to the effect that:
(i) that upon the occurrence of an Event of Default, Agent may terminate any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) transfer servicing to Agent's designee, at no cost or expense to Agent, it being agreed that Borrower will pay any and all fees required to terminate the Securitization Servicing Agreement may not be amended without and to effectuate the consent transfer of servicing to the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect theretodesignee of Agent.
(e) Notwithstanding anything After the Funding Date, until the pledge of any Mortgage Loan is relinquished by the Custodian, unless otherwise agreed in writing by Agent, Borrower will have no right to modify or alter the contrary contained terms of such Mortgage Loan and Borrower will have no obligation or right to repossess such Mortgage Loan or substitute another Mortgage Loan, except as provided in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At In the event Borrower or its Affiliate is servicing the Mortgage Loans, Borrower shall permit Agent to inspect Borrower's or its Affiliate's servicing facilities, as the case may be, for the purpose of satisfying Agent that Borrower or its Affiliate, as the case may be, has the ability to service the Mortgage Loans as provided in this Agreement.
(g) Borrower represents that each Servicing Agreement can be terminated by Borrower without cause and without payment of any time after the Securitization Date that the Note A-1-1 is no longer subject termination fee or other fee upon not greater than sixty (60) days prior written notice to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder Servicer thereunder. Borrower shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as not modify or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization amend any Servicing Agreement as if such agreement was still without Agent's prior written consent. Borrower represents that each Servicing Agreement is in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer and no default or event of default by Borrower exists under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt Borrower has no knowledge of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment default or event of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) default thereunder by the Non-Lead Securitization TrustServicer. Borrower shall, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Itemswithin ten (10) days following a written request by Agent, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer Agent true and the Operating Advisor (i) promptly following the Securitization correct copies of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead all Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisionsAgreements.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 4 contracts
Samples: Master Loan and Security Agreement (American Strategic Income Portfolio Inc Ii), Master Loan and Security Agreement (American Select Portfolio Inc), Master Loan and Security Agreement (American Strategic Income Portfolio Inc)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the First Securitization Date under interim servicing arrangements as directed by the Note A-1-1 A-1 Holder and from and after the First Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder Noteholder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such HolderNoteholder, at such Senior Note HolderNoteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing certificateholder”, “directing holder”, “controlling class representative” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.[INTENTIONALLY OMITTED]
(d) The Securitization Servicing Agreement shall contain (1) afford similar rights to Non-Lead Securitization Noteholders as the rights afforded to companion noteholders under the Model PSA and (2) afford the Note B Holder the same rights, privileges and remedies afforded to the Note B Holder hereunder (including (x) amounts payable to Note B Holder, (y) those in its capacity as Controlling Noteholder, and (z) those that are set forth in the Model PSA and incorporated or referred to herein), in each case, subject to minor variations that shall not adversely affect in more than a de minimis manner such Noteholders, and shall contain, among other things, provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provideprovide access to, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect in more than a de minimis manner the Mortgage Loan or the Note B Holder’s rights with respect theretothereto (including (x) amounts payable to Note B Holder, (y) those in its capacity as Controlling Noteholder, and (z) those that are set forth in the Model PSA and incorporated or referred to herein).
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 A-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 A-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders Noteholders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 A-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 A-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 A-1 Holder shall provide the Non-Controlling Note Holders Noteholders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note HolderNoteholder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder Noteholder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note HolderNoteholder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note HolderNoteholder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note HolderNoteholder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note HolderNoteholder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note HolderNoteholder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder Noteholder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 4 contracts
Samples: Agreement Between Noteholders (Bank 2021-Bnk32), Agreement Between Noteholders (Bank 2020-Bnk30), Agreement Between Noteholders (CSAIL 2021-C20 Commercial Mortgage Trust)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the First Securitization Date under interim servicing arrangements as directed by the Note A-1-1 A-2 Holder and from and after the First Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder Noteholder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note HolderNoteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing certificateholder”, “directing holder”, “controlling class representative” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 B Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 A-2 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 A-2 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders Noteholders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 A-2 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 A-2 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 A-2 Holder shall provide the Non-Controlling Note Holders Noteholders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note HolderNoteholder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder Noteholder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note HolderNoteholder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note HolderNoteholder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note HolderNoteholder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note HolderNoteholder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note HolderNoteholder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder Noteholder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 4 contracts
Samples: Agreement Between Noteholders (Bank 2021-Bnk36), Agreement Between Noteholders (Bank 2021-Bnk31), Agreement Between Noteholders (Bank 2020-Bnk30)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case The Borrowers covenant to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal maintain or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to cause the servicing of the Mortgage Loan Loans to be maintained in accordance conformity with this Agreement and the Securitization Accepted Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement)Practices. In no the event that the preceding language is interpreted as constituting one or more servicing contracts, each such servicing contract shall terminate automatically upon the Servicing Agreement require earliest of (i) an Event of Default, or (ii) the Servicer date on which all the Secured Obligations have been paid in full, or (iii) the transfer of servicing to enforce any entity approved by the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other NoteholderLender.
(b) In no event shall During the Note B Holder be entitled period the each Borrower is servicing the Mortgage Loans, (i) such Borrower agrees that Lender has a first priority perfected security interest in all servicing records, including but not limited to exercise any and all servicing agreements, files, documents, records, data bases, computer tapes, copies of computer tapes, proof of insurance coverage, insurance policies, appraisals, other closing documentation, payment history records, and any other records or rights relating to or evidencing the servicing of such Mortgage Loans (the “directing holder” consulting class or any analogous class or holder under "Servicing Records"), and (ii) such Borrower grants the Securitization Servicing Agreement except Lender a security interest in all servicing fees and rights relating to the extent Mortgage Loans and all Servicing Records to secure the Note B Holder obligation of such Borrower or its designee to service in conformity with this Section and any other obligation of such Borrower to the Lender. The Borrowers covenant to safeguard such Servicing Records and to deliver them promptly to the Lender or its designee (including the Custodian) at the Lender's request. It is given such rights expressly under understood and agreed by the terms parties that prior to an Event of this Agreement or Default, the Servicing Agreement in its capacity as Borrowers shall retain the Controlling Noteholderservicing fees with respect to the Mortgage Loans.
(c) In no event may If the Securitization Servicing Agreement change Mortgage Loans are serviced by any other third party servicer (such third party servicer, the interest allocable to"Subservicer"), the applicable Borrower shall provide a copy of the related servicing agreement with a properly executed Instruction Letter to the Lender at least three (3) Business Days prior to the applicable Funding Date or the amount date on which the Subservicer shall begin subservicing the Mortgage Loans, which shall be in the form and substance acceptable to Lender (the "Servicing Agreement") and shall have obtained the written consent of any payments due tothe Lender for such Subservicer to subservice the Mortgage Loans. Initially, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunderSubservicer shall be Aames Funding.
(d) The Securitization Borrowers agree that upon the occurrence of an Event of Default, the Lender may terminate the Borrowers in their capacity as servicer and terminate any Servicing Agreement and transfer such servicing to the Lender or its designee, at no cost or expense to the Lender. In addition, each Borrower shall contain provisions provide to the Lender an Instruction Letter from such Borrower to the effect that:
(i) that upon the occurrence of an Event of Default, the Lender may terminate any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Subservicer or Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, Agreement and the Master Servicer and the Special Servicer shall provide, any information, relating direct that collections with respect to the Mortgage Loan, Loans be remitted in accordance with the Mortgage Loan Borrower or Lender's instructions. The Borrowers agree to cooperate with the Mortgaged Property as such Person may reasonably request and Lender in connection with the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect transfer of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect theretoservicing.
(e) Notwithstanding anything After the Funding Date, until the pledge of any Mortgage Loan is relinquished by the Custodian, the Borrowers will have no right to modify or alter the terms of the Mortgage Loan or consent to the contrary contained in this Agreement, any obligation modification or alteration of the Servicer pursuant terms of any Mortgage Loan, and the Borrowers will have no obligation or right to the terms hereof shall be performed by the Master Servicer repossess any Mortgage Loan or the Special Servicersubstitute another Mortgage Loan, except as applicable, as set forth provided in the Servicing any Custodial Agreement.
(f) At any time after The Borrowers shall permit the Securitization Date Lender to inspect upon reasonable prior written notice (which shall be no more than five (5) Business Days prior to such date) at a mutually convenient time, the Borrowers' or their Affiliate's servicing facilities, as the case may be, for the purpose of satisfying the Lender that the Note A-1-1 is no longer subject Borrowers or their Affiliate, as the case may be, has the ability to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause service the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same Loans as or more favorable to the Non-Controlling Note Holders and Note B Holderprovided in this Warehouse Agreement. In addition, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note any Subservicer which is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in placenot an Affiliate of either Borrower, the actual applicable Borrower shall use its best efforts to enable the Lender to inspect the servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms facilities of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisionsSubservicer.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 4 contracts
Samples: Warehouse Loan and Security Agreement (Aames Financial Corp/De), Warehouse Loan and Security Agreement (Aames Financial Corp/De), Warehouse Loan and Security Agreement (Aames Financial Corp/De)
Servicing. (a) Each Noteholder acknowledges Pursuant to Section 2, the Company, in its role as collection agent hereunder, shall allocate and agrees thatremit funds received from Customers for the benefit of the Initial Bond Issuer, subject the Initial Bond Trustee, the Additional Bond Issuer, the Additional Bond Trustee, the Buyer and the Receivables Purchasers, respectively, and shall control the movement of such funds out of the Deposit Accounts in each case to accordance with the terms of this Agreement. To the extent permitted under the Initial Indenture, the Mortgage Loan shall Additional Indenture or the Receivables Purchase Agreement, the Company may appoint a successor servicer or sub-servicer to act in any of its respective capacities under this Agreement so long as such successor servicer or sub-servicer has executed joinder documentation agreeing to act in such capacity and to be serviced prior to the Securitization Date under interim servicing arrangements as directed bound by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no the event shall that the Note B Holder be Initial Bond Trustee is entitled to and desires to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable toright, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by Initial Bond Agreements, to replace the Master Company as Initial Property Servicer, in the event that the Additional Bond Trustee is entitled to and desires to exercise its right, pursuant to the Additional Bond Agreements, to replace the Company as Additional Property Servicer, or in the event that the Receivables Purchasers are entitled to and desire to exercise their right to replace the Company as Receivables Servicer, and therefore to terminate the role of the Company as the Initial Property Servicer, as the Additional Property Servicer or the Special as Receivables Servicer, as applicable, hereunder, the party desiring to exercise such right shall promptly give written notice to the other parties hereto (the “Servicer Notice”) in accordance with the notice provisions of this Agreement and consult with the other parties with respect to the Person who would replace the Company in its capacity as set forth Initial Property Servicer, as Additional Property Servicer or as Receivables Servicer. Any successor to the Company in any of such capacities shall be agreed to by the Servicing Agreement.
Initial Bond Trustee, the Additional Bond Trustee and the Administrative Agent within ten (f10) At any time after Business Days of the Securitization Date that date of the Note A-1-1 is no longer Servicer Notice, and such successor shall be subject to satisfaction of the Initial Bonds Rating Agency Condition (as defined below) and the Additional Bonds Rating Agency Condition (as defined below) and otherwise satisfy the provisions of the Securitization Initial Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Additional Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate Receivables Agreements. For the final terms avoidance of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereofdoubt, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration removal of the Notes and Company as the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to Initial Property Servicer shall not automatically cause the Notes, and that in removal of the event that Company as the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Additional Property Servicer or as the Special Receivables Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) each the removal of the Indemnified Parties Company as the Additional Property Servicer shall be indemnified (as and to not automatically cause 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 Servicing Agreement and, in the case removal of the Lead Securitization TrustCompany as the Initial Property Servicer or as the Receivables Servicer, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master removal of the Company as the Receivables Servicer will be required to deliver to shall not automatically cause the Trustee, removal of the Certificate Administrator, Company as the Special Initial Property Servicer or as the Additional Property Servicer, and (iv) the Master roles of Initial Property Servicer, Additional Property Servicer and Receivables Servicer may be held by different Persons so long as each such Person has agreed to be bound by the Operating Advisor provisions of this Agreement. “Business Day” means any day other than a Saturday, Sunday, or a day on which banking institutions in Albuquerque, New Mexico, New York, New York are, or DTC or the Corporate Trust Office (i) promptly following as defined in the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer Initial Indenture and the party designated Additional Indenture) is, or is authorized by law, regulation or executive order to exercise be closed. Any Person named as replacement collection agent in accordance with this Section 4 is referred to herein as a “Replacement Collection Agent.” The parties hereto agree that any entity succeeding to the rights of the “Non-Controlling Note Holder” under Company in its capacity as Initial Property Servicer, Additional Property Servicer or as Receivables Servicer hereunder shall execute customary joinder documentation agreeing to act in such capacity and to be bound by the terms of this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 4 contracts
Samples: Indenture (PNM Energy Transition Bond Co I, LLC), Indenture (PNM Energy Transition Bond Co I, LLC), Indenture (PNM Energy Transition Bond Co I, LLC)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the First Securitization Date under interim servicing arrangements as directed by the Note A-1-1 A-1 Holder and from and after the First Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder Noteholder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such HolderNoteholder, at such Senior Note HolderNoteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing certificateholder”, “directing holder”, “controlling class representative” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.[INTENTIONALLY OMITTED]
(d) The Securitization Servicing Agreement shall contain (1) afford similar rights to Non-Lead Securitization Noteholders as the rights afforded to companion noteholders under the Model PSA and (2) afford the Note B Holder the same rights, privileges and remedies afforded to the Note B Holder hereunder (including (x) amounts payable to Note B Holder, (y) those in its capacity as Controlling Noteholder, and (z) those that are set forth in the Model PSA and incorporated or referred to herein), in each case, subject to minor variations that shall not adversely affect in more than a de minimis manner such Noteholders, and shall contain, among other things, provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provideprovide access to, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect in more than a de minimis manner the Mortgage Loan or the Note B Holder’s rights with respect theretothereto (including (x) amounts payable to Note B Holder, (y) those in its capacity as Controlling Noteholder, and (z) those that are set forth in the Model PSA and incorporated or referred to herein).
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 A-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 A-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders Noteholders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 A-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 A-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 A-1 Holder shall provide the Non-Controlling Note Holders Noteholders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note HolderNoteholder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder Noteholder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note HolderNoteholder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note HolderNoteholder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note HolderNoteholder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note HolderNoteholder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.principal
Appears in 4 contracts
Samples: Agreement Between Noteholders (CSAIL 2021-C20 Commercial Mortgage Trust), Agreement Between Noteholders (Bank 2021-Bnk32), Agreement Between Noteholders (Bank 2021-Bnk31)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by pursuant to the Note A-1-1 Holder Interim Servicing Agreement and from and after the Securitization Date (except as otherwise set forth in Section 5(b2(e)), pursuant to the Securitization Servicing Agreement and, in each case, in accordance with this Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes Note(s) included in the Lead Securitization (and each Non-Lead Master Servicer shall not be required to advance monthly payments of principal and interest on in respect of the Notes other than the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing AgreementSenior Note) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder Each Noteholder acknowledges that each a Senior Noteholder or the Note A-B Holder may elect, in its sole discretion, to include the related its Senior Note or Note A-B in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such Senior Noteholder or Note A-B Holder, at such Senior Noteholder’s or Note A-B Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, the Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with and consent with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement and this Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the such Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer be required to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder.
(b) In no event The Controlling Noteholder (or any Controlling Noteholder Representative appointed by it acting on its behalf) shall exercise the Note B Holder be entitled rights and powers granted to exercise any rights of the “directing holderControlling Holder”, “Directing Certificateholder” consulting class or any analogous class “Directing Holder” (or holder similar term) under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as with respect to the Controlling NoteholderMortgage Loan.
(c) The Securitization Servicing Agreement shall contain the Servicing Standard (which shall require, among other things, that each Servicer, in servicing the Mortgage Loan, must take into account the interests of each Noteholder, taking into account that Note A-B is junior to the Senior Notes). In no event may the Securitization Servicing Agreement change the interest or principal allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder any Noteholder or materially increase the Controlling any Noteholder’s obligations or materially decrease the Controlling any Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders in accordance with Sections 3 and 4 hereof on the “master servicer remittance date” under the Securitization Servicing AgreementMaster Servicer Remittance Date;
(ii) each of the Note B Holder Noteholders shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person a Noteholder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Securitization Servicing Agreement Trust that includes other Notes, including, but not limited to standard CREFC® reports, provided subject to limitations on information that if an interest in Note B or the Note B Holder may be made available to a Noteholder that is held by the a Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note A-B Holder (not to be unreasonably withheld) if such amendment would materially and adversely affect the Mortgage Loan or the Note A-B Holder’s rights with respect thereto;
(v) provide that any inconsistency between the Servicing Agreement and this Agreement shall be governed by and determined in accordance with the terms of this Agreement; and
(vi) recognize the respective rights and obligations of the Noteholders hereunder, including with respect to the making of payment to the Noteholders and the rights of the Noteholders to approve matters and make decisions hereunder.
(e) Notwithstanding anything to the contrary contained in this Agreement, any Any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) Each Noteholder agrees to pay its Percentage Interest of (i) any servicing Advances and any interest accrued and payable on such Advances at the Advance Rate and (ii) any trust fund expenses and any other fees, costs or expenses incurred in connection with the servicing and administration of the Mortgage Loan (including, without limitation, any costs, fees and expenses related to obtaining any Rating Agency Confirmation and 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 servicing and administration of the Mortgage Loan and the Mortgaged Property under the Securitization Servicing Agreement) in accordance with the Securitization Servicing Agreement and this Agreement to the extent that such amounts remain unpaid or unreimbursed after funds received from the Mortgage Loan Borrower for payment of such amounts and any principal and interest collections allocable to Note A-B has been applied to pay such amounts.
(g) At any time after the Securitization Date that the Lead Senior Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder Lead Senior Noteholder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement mutually agreeable to the Non-Lead Senior Noteholders and the Note A-B Holder that contains servicing provisions which are the same as or more favorable to the NonNote A-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that (1) if any Non-Lead Senior Note is in a Securitization, then Rating Agency Confirmation shall have been obtained from each Rating Agency with respect to such subsequent servicing agreement and (2) until a replacement servicing agreement has been entered into, (x) the Note A-1-1 Holder Lead Senior Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, Loan and (y) the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by the Lead Senior Noteholder with the consent of the Note A-1A-1 B Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Upon the occurrence of the Lead Securitization, the Lead Senior Noteholder shall give each other Noteholders (and the applicable servicer and trustee, if any other Note is in a Securitization) notice of the Lead Securitization in writing (which may be by e-mail) prior to or promptly following the related Securitization Date. Such notice shall contain contact information for each of the parties to the related Securitization Servicing Agreement and the identity of the controlling class representative under such Securitization Servicing Agreement. In addition, after the closing of the Lead Securitization, the Lead Senior Noteholder shall send a copy of the Securitization Servicing Agreement to each of the other holders.
(i) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under contain the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, provisions set forth in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.Schedule I.
Appears in 3 contracts
Samples: Co Lender Agreement (BBCMS Mortgage Trust 2019-C5), Co Lender Agreement (UBS Commercial Mortgage Trust 2019-C17), Co Lender Agreement (BBCMS Mortgage Trust 2019-C4)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to this Agreement and the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization Note (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable each Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Securitization Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Each Note B Holder acknowledges that each Senior of the Note A-1 Holder, Note A-2 Holder and Note A-3 Holder may elect, in its sole discretion, to include the related Senior Note X-0, Xxxx X-0, and/or Note A-3 in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such Holderother Noteholder, at such Senior Note Holderother Noteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder Noteholders set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder against any other Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder.
(b) In no event shall the any Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the such Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder Controlling Noteholder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect hereunder. The Servicing Agreement shall require the Controlling Noteholder’s Master Servicer and Special Servicer to service the Mortgage Loan in accordance with the terms of this Agreement, including the rights of the Note B Holders hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) if an event of default under the Servicing Agreement has occurred (A) with respect to the Master Servicer under the Servicing Agreement that affects a Noteholder or any class of commercial mortgage securities backed by a Note, and the Master Servicer is not otherwise terminated under the Securitization Servicing Agreement, then a Note B Holder or its designees (if such Note B Holder is the Controlling Holder) shall be entitled to direct the Master Servicer to appoint a sub-servicer solely with respect to the Mortgage Loan (or if the Mortgage Loan is currently being sub-serviced, to replace the current sub-servicer, but only if such original sub-servicer is in default under the related sub-servicing agreement); and (B) the appointment (or replacement) of a sub-servicer with respect to the Mortgage Loan, as contemplated in clause (A) above, will in any event be subject to written confirmation from each Rating Agency that such appointment would not, in and of itself, cause a downgrade, qualification or withdrawal of the then-current ratings assigned to the securities issued in connection with any Securitization;
(ii) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Servicing Agreement;
(iii) the Master Servicer, any primary servicer, the Special Servicer and the Trustee, Certificate Administrator or other party acting as custodian for the Lead Securitization shall be required to 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 Securitization Servicing Agreement, at its own expense, in a timely manner, (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and all information to be included in reports (including, without limitation, Form ABS 15G, Form 10-K, Form 10-D and Form 8-K), and (ii) upon request, any other materials specified in the Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the parties to each Non-Lead Securitization may reasonably require in order to comply with their obligations under the Securities Act and the Exchange Act (including Rule 15Ga-1) and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, the Lead Securitization Noteholder shall provide in a timely manner to the Non-Lead Depositor and the Non-Lead Trustee a copy of the Lead Securitization Servicing Agreement in XXXXX-compatible format (but not later than one business day following the closing date of the Lead Securitization) and each Servicer under the Lead Securitization Servicing Agreement will be required, upon prior written request, to provide to the Non-Lead Depositor and the Non-Lead Trustee 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 each case in a timely manner for inclusion in any disclosure document (or for filing under Form 8-K, as applicable) and with respect to such 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 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 Securitization Servicing Agreement;
(iiiv) the Note B Holder Controlling Noteholder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provideprovide access to, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person the Controlling Noteholder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or the Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Lead Securitization Servicing Agreement Trust that includes other Notes but not limited to standard CREFC® reportsreports and Asset Status Reports, provided that if an interest in Note B the Controlling Noteholder or the related Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder Controlling Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Informationexcluded information” or analogous term under the Securitization Servicing Agreement;
(iiiv) with respect to any/each Non-Lead Securitization Note (other than any Non-Lead Securitization Note deposited into the Lead Securitization as to which payments shall be withdrawn and remitted as provided in the Servicing Agreement), the Master Servicer shall withdraw from the related Collection Account and remit to the Non-Lead Securitization Noteholder, within one (1) Business Day of receipt of properly identified funds, any amounts that represent late collections or principal prepayments on such Non-Lead Securitization 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 Non-Lead Securitization Noteholder; 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 or principal payments to the Non-Lead Master Servicer within two (2) Business Days of receipt of properly identified funds;
(vi) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(ivvii) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the and Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration shall be a third-party beneficiary of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trustall provisions therein expressly relating to compensation, against any of the Indemnified Items to the extent of its pro rata share reimbursement or indemnification of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with Lead Special Servicer, as the relevant contact information)case may be, and the provisions regarding coordination of advances;
(ivviii) satisfy Xxxxx’x rating methodology as of the closing date of the Lead Securitization related to eligible accounts and permitted investments for a securitization rated “Aaa” by Moody’s, or otherwise acceptable to Moody’s;
(ix) in connection with (A) any matter affecting the servicing and administration amendment of the Mortgage Loan that requires delivery of Lead Securitization Servicing Agreement, a Rating Agency Confirmation pursuant party to the such Lead Securitization Servicing Agreement shall also require delivery is required to provide a copy of a Rating Agency Confirmation under the executed amendment to each Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee Depositor and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note one or more parties to the related Non-Lead Securitization Note Holder.
Servicing Agreement (jwhich 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 (B) In the event any filing 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 be made by any provide to each Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order and one or more parties to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.date of effectiveness thereof;
Appears in 3 contracts
Samples: Agreement Between Noteholders (JPMCC Commercial Mortgage Securities Trust 2017-Jp7), Agreement Between Noteholders (DBJPM 2017-C6 Mortgage Trust), Agreement Between Noteholders (JPMCC Commercial Mortgage Securities Trust 2017-Jp6)
Servicing. (a) Each Noteholder acknowledges As a condition of purchasing a Mortgage Loan, Buyer may require Seller to service such Mortgage Loan as agent for Buyer for a term of thirty (30) days (the “Servicing Term”), which is renewable as provided in clause (d) below, on the following terms and agrees thatconditions:
(b) Seller shall service and administer the Purchased Mortgage Loans on behalf of Buyer in accordance with Accepted Servicing Practices, subject and in each case to accordance with all applicable requirements of the terms Agencies, Requirements of this AgreementLaw, the provisions of any applicable servicing agreement, and the requirements of any applicable Takeout Commitment and the Takeout Investor, so that the eligibility of the Purchased Mortgage Loan shall for purchase under such Takeout Commitment is not voided or reduced by such servicing and administration.
(c) If any Mortgage Loan that is proposed to be sold on a Purchase Date is serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date a servicer other than Seller or any of its Affiliates (except as otherwise set forth in Section 5(b)a “Subservicer”), pursuant or if the servicing of any such Mortgage Loan is to the Securitization Servicing Agreement; provided that the Master Servicer be transferred to a Subservicer, Seller shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms provide a copy of the related Non-Lead servicing agreement and a Servicer Notice executed by such Subservicer (collectively, the “Servicing Agreement”) if to Buyer prior to such principal Purchase Date or interest is not paid by the Mortgage Loan Borrower but servicing transfer date, as applicable. Each such Servicing Agreement shall be obligated in form and substance acceptable to advance delinquent real estate taxesBuyer. In addition, insurance premiums and other expenses related Seller shall have obtained the prior written consent of Buyer for such Subservicer to subservice the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Purchased Mortgage thereonLoans, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder which consent may elect, be withheld in its Buyer’s sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights Seller’s use of any Noteholder or limit the Servicer in enforcing the rights a Subservicer relieve Seller of one Noteholder against the other Noteholder; howeverits obligations hereunder, this statement and Seller shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder remain liable under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunderif Seller were servicing such Mortgage Loans directly.
(d) The Securitization Servicing Agreement Seller shall contain provisions to deliver the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to physical and contractual master servicing of each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Purchased Mortgage Loan, together with all of the related Records in its possession, to Buyer’s designee upon the earliest of (w) the occurrence of a Default or Event of Default hereunder, (x) the termination of Seller as servicer by Buyer pursuant to this Agreement, (y) the expiration (and non-renewal) of the Servicing Term, or (z) the transfer of servicing to any entity approved by Buyer and the assumption thereof by such entity. Buyer shall have the right to terminate Seller as master servicer (and any Subservicer as subservicer) of any of the Purchased Mortgage Loans, which right shall be exercisable at any time in Buyer’s sole discretion, upon written notice. In addition, Seller shall deliver the physical and contractual master servicing of each Purchased Mortgage Loan, together with all of the related Records in its possession to Buyer’s designee, upon expiration of the Servicing Term; provided that the Servicing Term and such delivery requirement will be deemed renewed for a like period on the last day of the Servicing Term, and on the last day of each such renewed Servicing Term, in the absence of directions to the contrary from Buyer; provided further that such delivery requirement will no longer apply to any Mortgage Loan, and Seller shall have no further obligation to service such Mortgage Loan Borrower or as agent for Buyer, upon receipt by Buyer of the Mortgaged Property as such Person may reasonably request Repurchase Price therefor. Seller’s transfer of the Records and the physical and contractual servicing under this Section shall be in accordance with customary standards in the possession of, or collected or known by, industry and such transfer shall include the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect transfer of the rights afforded it under gross amount of all escrows held for the Securitization Servicing Agreement and may directly enforce such rights; and
related mortgagors (iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan reduction for unreimbursed advances or the Note B Holder’s rights with respect thereto“negative escrows”).
(e) Notwithstanding anything to During the contrary contained in this Agreementperiod Seller is servicing the Purchased Mortgage Loans as agent for Buyer, any obligation Seller agrees that Buyer is the owner of the Servicer pursuant related Credit Files and Records and Seller shall at all times maintain and safeguard and cause any Subservicer to maintain and safeguard the terms hereof shall be performed Credit File for the Mortgage Loan (including photocopies or images of the documents delivered to Buyer), and accurate and complete records of its servicing of the Mortgage Loan; Seller’s possession of the Credit Files and Servicing Records being for the sole purpose of master servicing such Mortgage Loans and such retention and possession by Seller being in a custodial capacity only. Seller hereby grants Buyer a security interest in all servicing fees to secure the Master Servicer or the Special Servicer, as applicable, as set forth obligations of Seller and any Subservicer to service in the conformity with this Section and any related Servicing Agreement.
(f) At Buyer’s request, Seller shall promptly deliver to Buyer reports regarding the status of any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to being serviced by Seller, which reports shall include, but shall not be serviced pursuant to limited to, a servicing agreement description of any default thereunder for more than thirty (30) days or such other circumstances that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) could cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean a material adverse effect on such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that Buyer’s title to such Mortgage Loan or the Servicer under collateral securing such Mortgage Loan; Seller may be required to deliver such reports until the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing repurchase of the Mortgage Loan may be performed by Seller. Seller shall immediately notify Buyer if it becomes aware of any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth payment default that occurs under the Securitization Mortgage Loan or any default under any Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders Agreement that would materially and Note B Holder with a reasonable opportunity to review and comment on adversely affect any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisionsMortgage Loan subject thereto.
(g) If Seller shall release its custody of the Note B Holder exercises its purchase option contents of any Credit File or Mortgage File only (i) in accordance with Section 12 hereofthe written instructions of Buyer, (ii) upon the consent of Buyer when such release is required as incidental to Seller’s servicing of the Mortgage Loan being transferred Loan, is required to complete the Note B HolderTakeout Commitment or comply with the Takeout Commitment requirements, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment or (iii) as required by Requirements of any termination feesLaw.
(h) Each Non-Lead Securitization Note HolderBuyer reserves the right to appoint a successor servicer at any time to service any Mortgage Loan (each a “Successor Servicer”) in its sole discretion. If Buyer elects to make such an appointment due to a Default or Event of Default, if its Non-Lead Securitization Note is included in a Securitization, Seller shall cause be assessed all costs and expenses incurred by Buyer associated with transferring the applicable Non-Lead Servicing Agreement to contain provisions Mortgage Loans to the effect that:
(i) Successor Servicer. In the Non-Lead Securitization Note Holder event of such an appointment, Seller shall be responsible for its pro rata share of perform all acts and take all action so that any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration part of the Notes Credit File and related Records held by Seller, together with all Income and other receipts relating to such Mortgage Loan, are promptly delivered to Successor Servicer, and shall otherwise reasonably cooperate with Buyer in effectuating such transfer. Seller shall have no claim for lost servicing income, lost profits or other damages if Buyer appoints a Successor Servicer hereunder and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances servicing fee is reduced or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisionseliminated.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect For the avoidance of doubt, Seller retains no economic rights to the Senior Notes will be allocated by servicing of the Master Servicer between Purchased Mortgage Loans provided that Seller shall continue to service the Senior NotesPurchased Mortgage Loans hereunder as part of its Obligations hereunder. As such, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of Seller expressly acknowledges that the Purchased Mortgage Loans are sold to Buyer on a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder“servicing released” basis.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 3 contracts
Samples: Master Repurchase Agreement (loanDepot, Inc.), Master Repurchase Agreement, Master Repurchase Agreement (loanDepot, Inc.)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements Date, as directed by described in the Note A-1-1 Holder definition of the Servicing Agreement and from and after the Securitization Date (except as otherwise set forth in Section 5(b2(f)), pursuant to the Lead Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest make P&I Advances in respect of the Notes other than the Notes included in the Lead Securitization Note (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable related Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Securitization Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower Borrower, but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereonmake Servicing Advances, subject to the terms of the Lead Securitization Servicing AgreementAgreement including any provisions governing the determination of non-recoverability. The Note B Holder Junior Noteholder acknowledges that each any Senior Note Holder Noteholder may elect, in its sole discretion, to include the related Senior Note its respective Note, or any portion thereof, in a Securitization one or more Securitizations and agrees that it will, subject to Section 2423, reasonably cooperate with such Holderthe applicable Senior Noteholder, at such Senior Note HolderNoteholder’s sole cost and expense, to effect any such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, the Special Servicer Servicer, the Trustee, any Certificate Administrator, the Asset Representations Reviewer and the Trustee any Securitization Operating Advisor under the Lead Securitization Servicing Agreement by the applicable Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer (and such other parties) with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Lead Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the such Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; provided, however, that this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder. Each Servicer shall be required pursuant to the Servicing Agreement to service the Mortgage Loan in accordance with the Servicing Standard, the terms of the Mortgage Loan Documents, this Agreement, the Servicing Agreement and applicable law, shall provide information to each Non-Lead Servicer to enable such Non-Lead Servicer to perform its servicing duties under the related Non-Lead Securitization Servicing Agreement and shall not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.
(b) In no event shall the Note B Holder Junior Noteholder be entitled to exercise any rights of the “directing holder” consulting ”, controlling class or any analogous class or holder under the Lead Securitization Servicing Agreement except to the extent the Note B Holder Junior Noteholder is given such rights expressly under the terms of this Agreement or the Lead Securitization Servicing Agreement in its capacity as the Controlling Noteholder.
(c) The Lead Securitization Servicing Agreement shall, unless otherwise agreed to by the Controlling Noteholder, contain (i) servicing and reporting provisions (including Asset Status Reports for all Major Decisions) substantially similar in all material respects to the servicing provisions of the Model PSA and (ii) a Servicing Standard substantially similar in all material respects to the servicing standard in the Model PSA. In no event may the Lead Securitization Servicing Agreement change the interest or principal allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder Junior Noteholder or materially increase the Controlling Junior Noteholder’s obligations or materially decrease the Controlling Junior Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect hereunder. The Lead Securitization Servicing Agreement shall require the Controlling Noteholder’s Master Servicer and the Special Servicer to service the Mortgage Loan in accordance with the terms of this Agreement, including the rights of the Junior Noteholder hereunder.
(d) The Lead Securitization Servicing Agreement shall contain provisions to the effect that:
(i) if a Servicer Termination Event under the Lead Securitization Servicing Agreement has occurred (A) with respect to the Master Servicer under the Lead Securitization Servicing Agreement that affects a Noteholder or any class of commercial mortgage securities backed by a Note or a participation interest in a Note, and the Master Servicer is not otherwise terminated under the Lead Securitization Servicing Agreement, then the Junior Noteholder or its designees (if the Junior Noteholder is the Controlling Holder), together with any affected Non-Lead Securitization Noteholder, shall be entitled to direct the Trustee to appoint a sub-servicer solely with respect to the Mortgage Loan (or if the Mortgage Loan is currently being sub-serviced, to replace the current sub-servicer, but only if such original sub-servicer is in default under the related sub-servicing agreement); and (B) the appointment (or replacement) of a sub-servicer with respect to the Mortgage Loan, as contemplated in clause (A) above, will in any event be subject to Rating Agency Confirmation in connection with any Securitization;
(ii) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders in accordance with Section 3 and Section 4 hereof on the “master servicer remittance date” under the Lead Securitization Servicing Agreement;
(iiiii) the Note B Holder Noteholders shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or the Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Securitization Servicing Agreement Trust that includes any Non-Lead Securitization Note (including, but not limited to, standard CREFC reports); provided that, notwithstanding anything to standard CREFC® reportsthe contrary contained in this Agreement, provided that if an interest in the Junior Note B or the Note B Holder Junior Noteholder is held by the Mortgage Loan Borrower or a any Mortgage Loan Borrower Related Party, then the Note B Holder Junior Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreementstrategy;
(iiiiv) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and may directly enforce such rights; and
(ivv) the Lead Securitization Servicing Agreement may not be amended without the consent of the Note B Holder other Noteholders if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holderother Noteholder’s rights with respect theretoto the Mortgaged Loan (as reasonably determined by the other Noteholders) thereunder.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) Holders agree to cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable substantially similar to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Lead Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Lead Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a any Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating AgencyAgency with respect to such Securitization; provided, further, however, that until a replacement servicing agreement has been entered into, the Lead Securitization Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Lead Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer Approved Servicer appointed by Note A-1-1 Holder the Lead Securitization Noteholder and does not have to be performed by the service providers set forth under the Lead Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If The Master Servicer shall be the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon master servicer on the Mortgage Loan being transferred Loan, and from time to time it (or the Trustee, to the Note B Holderextent provided in the Servicing Agreement) (i) shall be required to make Servicing Advances with respect to the Mortgage Loan, subject to the terms of the Servicing Agreement and this Agreement, and (ii) may be required to make P&I Advances on the Lead Securitization Note, if and to the extent provided in the Servicing Agreement and this Agreement. The Master Servicer, the Note B Holder Special Servicer and the Trustee, as applicable, shall be entitled to terminate reimbursement for a Servicing Advance, first from funds on deposit in the Whole Loan Custodial Account for the Mortgage Loan that (in any case) represent amounts received on or in respect of the Mortgage Loan, and then, in the case of Nonrecoverable Servicing Advances, if such funds on deposit in the Whole Loan Custodial Account are insufficient, from general collections of the Lead Securitization as provided in the Servicing Agreement in its sole discretion without payment and from general collections of any termination fees.
(h) Each each Non-Lead Securitization Note Holderas provided below. The Master Servicer, if its the Special Servicer and the Trustee, as applicable, will be entitled to reimbursement for Advance Interest Amounts on a Servicing Advance or a Nonrecoverable Servicing Advance, in the manner and from the sources provided in the Servicing Agreement, including from general collections of the Lead Securitization and, in the case of Servicing Advances, from general collections of each Non-Lead Securitization Note is included in as provided below. To the extent the Master Servicer, the Special Servicer or the Trustee, as applicable, obtains funds from general collections of the Lead Securitization as a Securitizationreimbursement for a Nonrecoverable Servicing Advance or any Advance Interest Amounts on a Servicing Advance or a Nonrecoverable Servicing Advance, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the each Non-Lead Securitization Note Holder Noteholder (including from general collections or any other amounts from any Non-Lead Securitization Trust) shall be responsible required to, promptly following notice from the Master Servicer, reimburse the Lead Securitization for its pro rata share of any such Nonrecoverable Servicing Advances Advance or Advance Interest Amounts (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event it being understood that the funds received with respect to pro rata share payable by each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will Securitization Noteholder under this paragraph would be determined by allocating such Nonrecoverable Servicing Advance or Advance Interest Amount, as the case may be, first to the Junior Note and then to the Senior Notes, in that order). In addition, each Non-Lead Securitization Noteholder (including, but not limited to, any Non-Lead Securitization Trust) shall be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Lead Securitization for such Non-Lead Securitization Noteholder’s pro rata share of any fees, costs or expenses incurred in connection with the servicing and administration of the Mortgage Loan as to which the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, Trustee or the Depositor of the Lead Securitization TrustSecuritization, as applicable, out of general funds is entitled to be reimbursed pursuant to the Servicing Agreement and any costs, fees and expenses related to obtaining any Rating Agency Confirmation, to the extent amounts on deposit in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement Whole Loan Custodial Account are insufficient for the reimbursement of such amounts. Each Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances Noteholder agrees to indemnify (together with advance interest thereoni) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 the following parties in respect of other mortgage loans in the Lead Securitization Trust pursuant to the terms of Servicing Agreement andAgreement) each of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Securitization Operating Advisor and the Depositor of the Lead Securitization (and any director, officer, member, manager, employee or agent of any of the foregoing, to the extent such parties are identified as indemnified parties in the case Servicing Agreement in respect of other mortgage loans) and (ii) the Lead Securitization Trust (such parties in clause (i) and the Lead Securitization Trust, to collectively, the extent “Indemnified Parties”) 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 servicing and administration of any additional trust fund expenses the Mortgage Loan and the Mortgaged Property (or, with respect to the Securitization Operating Advisor, incurred in connection with the provision of services for the Mortgage Loan) by under the Non-Lead Securitization TrustServicing Agreement (collectively, against any of the “Indemnified Items Items”) to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the such Non-Lead Master Servicer will Securitization Noteholder shall be required to to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s their pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trusteeincluding, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to if the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any has been included in a Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Securitization, from general collections or any other amounts from such Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.Securitization
Appears in 3 contracts
Samples: Agreement Among Noteholders (UBS Commercial Mortgage Trust 2017-C2), Agreement Among Noteholders (UBS Commercial Mortgage Trust 2017-C1), Agreement Among Noteholders (Wells Fargo Commercial Mortgage Trust 2017-C38)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 A-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 B Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 A-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 A-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 A-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 A-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 A-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 3 contracts
Samples: Agreement Between Noteholders (Benchmark 2020-B20 Mortgage Trust), Agreement Between Noteholders (Benchmark 2020-B19 Mortgage Trust), Agreement Between Noteholders (Benchmark 2020-B18 Mortgage Trust)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to this Agreement and the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization Note (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable each Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Securitization Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior of the Note A-1 Holder, Note A-2 Holder, Note A-3 Holder, Note A-4 Holder and Note A-5 Holder may elect, in its sole discretion, to include the related Senior Note X-0, Xxxx X-0, Xxxx X-0, Note A-4 and/or Note A-5 in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such other Note Holder, at such Senior other Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder Noteholders set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder against any other Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder Controlling Noteholder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder Controlling Noteholder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provideprovide access to, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person the Controlling Noteholder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or the Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Lead Securitization Servicing Agreement Trust that includes other Notes but not limited to standard CREFC® reportsCREFC reports and Asset Status Reports, provided that if an interest in Note B the Controlling Noteholder or the related Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder Controlling Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Informationexcluded information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s its rights with respect theretothereunder.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Lead Securitization Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder Lead Securitization Noteholder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Servicing Agreement (including, without limitation, all applicable provisions relating to delivery of information and reports necessary for any Non-Lead Securitization Servicing Agreementto comply with any applicable reporting requirements under the Securities Exchange Act of 1934, and (iias amended) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a any Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating AgencyAgency with respect to such subsequent servicing agreement; provided, further, however, that until a replacement servicing agreement has been entered into, the Lead Securitization Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan; provided, however, that the Servicer under the Servicing Agreement shall have no further obligations to advance monthly payments of principal and interest; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder Lead Securitization Noteholder and the special servicer appointed by the Controlling Noteholder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note HolderNoteholder agrees that, if its a Non-Lead Securitization Note is included in a Securitization, it shall cause the applicable Non-Lead Securitization Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder Noteholder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Securitization Servicing Agreement for the Non-Lead Securitization Note HolderNoteholder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Securitization Servicing Agreement for the Non-Lead Securitization Note HolderNoteholder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Securitization Servicing Agreement;
(iii) the Non-Lead Master Servicer Certificate Administrator will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and Servicer, the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note HolderPari Passu Noteholder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Securitization Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note HolderPari Passu Noteholder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the each Non-Lead Securitization Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(ih) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes Note X-0, Xxxx X-0, Xxxx X-0, Note A-4 and Note A-5 will be allocated by the Master Servicer between the Senior Notesamong Note X-0, Xxxx X-0, Xxxx X-0, Note A-4 and Note A-5, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a the Non-Lead Securitization Note to the related Non-Lead Securitization Note HolderNoteholder.
(ji) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder Noteholder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
(j) Each Non-Lead Securitization Noteholder shall give each of the parties to the Servicing Agreement and the Note B Holder (that will not also be a party to the related Non-Lead Securitization Servicing Agreement) notice of the Non-Lead Securitization in writing (which may be by e-mail) promptly after the related Non-Lead Securitization Date. Such notice shall contain contact information for each of the parties to the related Non-Lead Securitization Servicing Agreement. In addition, after the related Non-Lead Securitization Date, the related Non-Lead Securitization Noteholder shall send a copy of the related Non-Lead Securitization Servicing Agreement to each of the parties to the Servicing Agreement and the Note B Holder.
(k) If a Non-Lead Securitization Note becomes the subject of an Asset Review pursuant to the related Non-Lead Securitization Servicing Agreement, the Master Servicer, the Special Servicer, the Trustee and the Custodian shall reasonably cooperate with such Non-Lead Asset Representations Reviewer in connection with such Asset Review by providing such Non-Lead Asset Representations Reviewer with any documents reasonably requested by such Non-Lead Asset Representations Reviewer, but only to the extent that such documents are in the possession of the Master Servicer, the Special Servicer, the Trustee or the Custodian, as the case may be, and are not in the possession of the Non-Lead Asset Representations Reviewer (and the Non-Lead Asset Representations Reviewer has informed such party that it has first requested, and not received, the documents from the master servicer, special servicer and custodian for the applicable Non-Lead Securitization).
Appears in 3 contracts
Samples: Agreement Between Noteholders (JPMCC Commercial Mortgage Securities Trust 2017-Jp6), Agreement Between Noteholders (JPMCC Commercial Mortgage Securities Trust 2017-Jp5), Agreement Between Noteholders (JPMDB Commercial Mortgage Securities Trust 2016-C4)
Servicing. (a) Each Noteholder acknowledges Borrower covenants to cause the Asset and agrees thatthe Underlying Loan to be serviced by Hanover Street Capital, subject LLC (“Hanover”) or another third party servicer that is not an Affiliate of Borrower and is reasonably acceptable to Lender (the “Servicer”) pursuant to a servicing agreement in each case form and substance reasonably acceptable to Lender (“Servicing Agreement”), and otherwise in conformity with accepted customary and prudent servicing practices in the industry for the same type of assets as the Asset and the Underlying Loan and in a manner at least equal in quality to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed Guarantor provides for assets owned by the Note A-1-1 Holder and from and after the Securitization Date Guarantor or its Affiliates (except as otherwise set forth in Section 5(b“Accepted Servicing Practices”)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer . Borrower shall not be obligated replace the Servicer and/or enter into (or consent to advance monthly payments of principal or interest in respect of the Notes any other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing AgreementPerson entering into) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization new Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master ServicerAsset without Lender’s prior written consent, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement which consent shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholderunreasonably withheld, conditioned or delayed.
(b) In no event shall Borrower agrees that Lender is the Note B Holder be entitled collateral assignee of all servicing records of Borrower with respect to exercise the Asset, if any, including but not limited to any rights and all servicing agreements, files, documents, records, data bases, computer tapes, copies of computer tapes, proof of insurance coverage, insurance policies, appraisals, other closing documentation, payment history records, and any other records relating to or evidencing the servicing of the Asset (the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except Records”), and Borrower hereby grants Lender a security interest in all of Borrower’s rights relating to the extent Asset and all Servicing Records to secure the Note B Holder is given obligation of Borrower or its designee to service in conformity with this Section and any other obligation of Borrower to Lender. Borrower covenants to safeguard such rights expressly under Servicing Records and, during the terms continuance of this Agreement an Event of Default, to deliver them promptly to Lender or its designee (including the Servicing Agreement in its capacity as the Controlling NoteholderCustodian) at Lender’s written request.
(c) In no event Borrower shall permit Lender to inspect Borrower’s or its Affiliates’ servicing facilities pursuant to Section 11.16 below, as the case may be, for the Securitization Servicing Agreement change purpose of satisfying Lender that Borrower or its Affiliates, as the interest allocable tocase may be, or have the amount of any payments due to, ability to manage the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunderAsset as provided in this Loan Agreement.
(d) The Securitization Servicing Agreement shall contain provisions On or prior to the effect that:
(i) any payments received on Closing Date, Borrower shall enter into a Servicer Notice and Agreement with the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.form attached hereto as Exhibit C.
(e) Notwithstanding anything At the option of Lender, the Loan may be serviced by one or more servicers/trustees (any such servicer/trustee, together with its agent’s, nominees or designees, are collectively referred to as “Loan Servicer”) selected by Lender and Lender may delegate all or any portion of its responsibilities under this Loan Agreement and the contrary contained in this Agreement, any obligation of the Servicer pursuant other Loan Documents to the terms hereof shall be performed by the Master Servicer or the Special Loan Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to which may be serviced done by Lender pursuant to a servicing agreement that contains servicing provisions which are the same as between Lender and Loan Servicer. Loan Servicer may, at any time, delegate all or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing any portion of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible responsibilities for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan to a sub-servicer or sub-servicers. Borrower shall be responsible for any costs and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out expenses of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Loan Servicer to the extent related to the servicing such costs and administration of the Mortgage Loan expenses would otherwise be payable by Borrower if incurred by Lender or Lender hereunder. Lender and the Mortgaged Property);
(ii) each of the Indemnified Parties Borrower agree that Hanover 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole initial Loan Custodial Account Servicer hereunder. Borrower agrees that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will it shall be required to reimburse each pay the Loan Servicer an annual servicing fee of $21,000 during the term of the applicable Indemnified Parties for Loan, payable on a monthly basis ($1,750 per month) on each Payment Date (the Non-Lead Securitization Note’s pro rata share “Loan Servicing Fee”). Notwithstanding any collection of the insufficiency out Loan Servicing Fee by Lender on behalf of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Loan Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Loan Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes Fee will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note deemed to the related Non-Lead Securitization Note Holderhave been paid directly to Servicer.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 3 contracts
Samples: Loan and Security Agreement (TPG RE Finance Trust, Inc.), Loan and Security Agreement (TPG RE Finance Trust, Inc.), Loan and Security Agreement (TPG RE Finance Trust, Inc.)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements Date, as directed by described in the Note A-1-1 Holder definition of the Servicing Agreement and from and after the Securitization Date (except as otherwise set forth in Section 5(b2(f)), pursuant to the Lead Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest make P&I Advances in respect of the Notes other than the Notes included in the Lead Securitization Note (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable related Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Securitization Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower Borrower, but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereonmake Servicing Advances, subject to the terms of the Lead Securitization Servicing AgreementAgreement including any provisions governing the determination of non-recoverability. The Note B Holder Junior Noteholder acknowledges that each any Senior Note Holder Noteholder may elect, in its sole discretion, to include the related Senior Note its respective Note, or any portion thereof, in a Securitization one or more Securitizations and agrees that it will, subject to Section 2423, reasonably cooperate with such Holderthe applicable Senior Noteholder, at such Senior Note HolderNoteholder’s sole cost and expense, to effect any such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, the Special Servicer Servicer, the Trustee, any Certificate Administrator, the Asset Representations Reviewer and the Trustee any Securitization Operating Advisor under the Lead Securitization Servicing Agreement by the applicable Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer (and such other parties) with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.the
Appears in 3 contracts
Samples: Agreement Among Noteholders (Citigroup Commercial Mortgage Trust 2018-C5), Agreement Among Noteholders (JPMDB Commercial Mortgage Securities Trust 2018-C8), Agreement Among Noteholders (UBS Commercial Mortgage Trust 2018-C9)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject as further provided in each case to the terms Section 5 of this this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder Each Noteholder acknowledges that each Senior Note Holder other Noteholder may elect, in its sole discretion, to include the related Senior its Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, a securitizing Noteholder at such Senior Note Holderthe securitizing Noteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, the Special Servicer Servicer, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder against another Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event . Each Servicer shall the Note B Holder be entitled required pursuant to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered intoStandard, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing terms of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing AgreementDocuments, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each and applicable law, shall provide information to each Non-Lead Securitization Note Holder, if its Servicer to enable such Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement Servicer to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for perform its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established duties under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of shall not take any subsequent change in the identity of the Non-Lead Master Servicer action or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together refrain from taking any action or follow any direction inconsistent with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisionsforegoing.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 3 contracts
Samples: Agreement Between Noteholders (Citigroup Commercial Mortgage Trust 2017-P7), Agreement Between Noteholders (CSMC 2016-NXSR Commercial Mortgage Trust), Agreement Between Noteholders (Wells Fargo Commercial Mortgage Trust 2016-Nxs6)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to this Agreement and the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included for any Note in the Lead Securitization (and each a Non-Lead Master Servicer shall may be required to advance monthly payments of principal and interest on the applicable a Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Securitization Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing AgreementAgreement (including a determination of recoverability thereunder). The Note B Holder Each Noteholder acknowledges that each Senior Note Holder Initial Noteholder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such Holderother Noteholder, at such Senior Note Holderother Noteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Trustee under the Securitization Servicing Agreement by the Depositor, and the appointment of the Special Servicer as the initial Special Servicer under the Servicing Agreement by the Depositor (subject to replacement by the Controlling Noteholder as provided herein) and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder Noteholders set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the any Servicer to enforce the rights of any Noteholder against any other Noteholder or limit the any Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.other
Appears in 3 contracts
Samples: Agreement Between Noteholders (COMM 2019-Gc44 Mortgage Trust), Agreement Between Noteholders (Citigroup Commercial Mortgage Trust 2019-Gc43), Agreement Between Noteholders (GS Mortgage Securities Trust 2019-Gsa1)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by pursuant to the Note A-1-1 Holder Interim Servicing Agreement and from and after the Securitization Date (except as otherwise set forth in Section 5(b2(e)), pursuant to the Securitization Servicing Agreement and, in each case, in accordance with this Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization Senior Note (and each Non-Lead Master Servicer shall not be required to advance monthly payments of principal and interest on in respect of the Notes other than the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing AgreementSenior Note) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each a Senior Note Holder Noteholder may elect, in its sole discretion, to include the related its Senior Note in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such HolderSenior Noteholder, at such Senior Note HolderNoteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, the Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with and consent with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement and this Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer be required to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder.
(b) In no event The Controlling Noteholder (or any Controlling Noteholder Representative appointed by it acting on its behalf) shall exercise the Note B Holder be entitled rights and powers granted to exercise any rights of the “directing holderControlling Holder”, “Directing Certificateholder” consulting class or any analogous class “Directing Holder” (or holder similar term) under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as with respect to the Controlling NoteholderMortgage Loan.
(c) The Securitization Servicing Agreement shall contain the Servicing Standard. In no event may the Securitization Servicing Agreement change the interest or principal allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 B Holder or materially increase the Controlling NoteholderNote B Holder’s obligations or materially decrease the Controlling NoteholderNote B Holder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders in accordance with Sections 3 and 4 hereof on the “master servicer remittance date” under the Securitization Servicing AgreementMaster Servicer Remittance Date;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person the Note B Holder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Securitization Servicing Agreement Trust that includes other Notes, including, but not limited to standard CREFC® reports, provided subject to limitations on information that if an interest in Note B or the may be made available to a Note B Holder that is held by the a Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder (which consent may be withheld in the Note B Holder’s sole and absolute discretion) if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto;
(v) the Securitization Servicing Agreement shall contain, the additional provisions set forth on Schedule I;
(vi) any inconsistency between the Servicing Agreement and this Agreement shall be governed by and determined in accordance with the terms of this Agreement; and
(vii) the respective rights and obligations of the Noteholders hereunder, including with respect to the making of payment to the Noteholders and the rights of the Noteholders to approve matters and make decisions hereunder, shall be recognized.
(e) Notwithstanding anything to the contrary contained in this Agreement, any Any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Lead Senior Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder Lead Senior Noteholder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement mutually agreeable to the Non-Lead Senior Noteholders and the Note B Holder that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that (1) if any Non-Lead Senior Note is in a Securitization, then Rating Agency Confirmation shall have been obtained from each Rating Agency with respect to such subsequent servicing agreement and (2) until a replacement servicing agreement has been entered into, (x) the Note A-1-1 Holder Lead Senior Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, Loan and (y) the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by the Lead Senior Noteholder with the consent of the Note A-1-1 B Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If Upon the occurrence of the Note B Holder exercises its purchase option A-1 Securitization, the Lead Senior Noteholder shall give each other Noteholder (and the applicable servicer and trustee, if any other Note is in accordance with Section 12 hereof, upon a Securitization) notice of the Mortgage Loan being transferred Lead Securitization in writing (which may be by e-mail) prior to or promptly following the related Securitization Date. Such notice shall contain contact information for each of the parties to the related Securitization Servicing Agreement and the identity of the controlling class representative under such Securitization Servicing Agreement. In addition, after the closing of the Note B HolderA-1 Securitization, the Note B Holder related Lead Senior Noteholder shall be entitled to terminate send a copy of the related Securitization Servicing Agreement in its sole discretion without payment to each of any termination feesthe other Noteholders.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under contain the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisionsprovisions set forth in Schedule II.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 3 contracts
Samples: Co Lender Agreement (BBCMS Mortgage Trust 2019-C5), Co Lender Agreement (BBCMS Mortgage Trust 2019-C4), Co Lender Agreement (BBCMS Mortgage Trust 2019-C3)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced pursuant to this Agreement and (i) prior to the Lead Securitization Date Date, under interim servicing arrangements as directed by the Note A-1-1 A-1 Holder and from and (ii) after the Lead Securitization Date (except as otherwise set forth in Section 5(b))Date, pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing AgreementAgreement (including a determination of recoverability thereunder). The Note B Holder Each Noteholder acknowledges that each Senior Note Holder other Noteholder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such Holderother Noteholder, at such Senior Note Holderother Noteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Trustee under the Securitization Servicing Agreement by the Depositor, and the appointment of the Special Servicer as the initial Special Servicer under the Servicing Agreement by the Depositor (subject to replacement by the Controlling Noteholder as provided herein) and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder Noteholders set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the any Servicer to enforce the rights of any Noteholder against any other Noteholder or limit the any Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder.
(b) In no event . Each Servicer shall the Note B Holder be entitled required pursuant to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth Standard, the terms of the Mortgage Loan Documents, the Servicing Agreement and applicable law, and shall not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.
(b) [Reserved.]
(c) [Reserved.]
(d) The Master Servicer shall be the lead master servicer on the Mortgage Loan, and from time to time it (or the Trustee, to the extent provided in the Lead Securitization Servicing Agreement, and all references herein ) (i) shall be required to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect make Property Protection Advances with respect to the Mortgage Loan, provided, however, that subject to the Servicer under terms of the Lead Securitization Servicing Agreement shall have no further obligations and this Agreement, and (ii) may be required to make P&I Advances; provided, further, however, that if a Non-Advances on the Lead Securitization Note is Note, if and to the extent provided in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Lead Securitization Servicing Agreement and this Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do sowill be entitled to reimbursement for a Property Protection Advance, first from funds on deposit in each of the Collection Account and the Companion Distribution Account that (in any case) represent amounts received on or in respect of the Mortgage Loan in the manner provided in the Lead Securitization Servicing Agreement, and then, in the case of Nonrecoverable Property Protection Advances, if such funds on deposit in the Collection Account and Companion Distribution Account are insufficient, from general collections of the Lead Securitization as provided in the Lead Securitization Servicing Agreement and from general collections of the Non-Lead Master Servicer will be required to, promptly following notice from the Securitizations as provided below. The Master Servicer, the Special Servicer or and the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement andapplicable, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required entitled to reimburse each of the applicable Indemnified Parties reimbursement for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into Advance Interest Amounts on a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.Property Protection Advance or
Appears in 3 contracts
Samples: Agreement Between Noteholders (Benchmark 2020-B19 Mortgage Trust), Agreement Between Noteholders (DBJPM 2020-C9 Mortgage Trust), Agreement Between Noteholders (JPMDB Commercial Mortgage Securities Trust 2020-Cor7)
Servicing. (a) Each Noteholder acknowledges Pursuant to Section 2, the Company, in its role as collection agent hereunder, shall allocate and agrees thatremit funds received from Customers for the benefit of the Initial Bond Issuer, subject the Initial Bond Trustee, the Buyer and the Receivables Purchasers, respectively, and shall control the movement of such funds out of the Deposit Accounts (such allocation, remittance and deposits hereafter called the “Allocation Services”) in each case to accordance with the terms of this Agreement, . The same entity must always act as servicer in the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect performance of the Notes other than Allocation Services as to both the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer Initial Bond Agreements and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other NoteholderReceivables Agreements.
(b) In no the event shall that the Note B Holder be Initial Bond Trustee is entitled to and desires to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable toright, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by Initial Bond Agreements, to replace the Master Servicer or the Special Company as Initial Property Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect Receivables Purchasers are entitled to each respective Note are insufficient and desire to cover such Servicing Advances or additional trust fund expenses, (A) exercise their right to replace the NonCompany as Receivables Sub-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse and therefore to terminate the Master Servicerrole of the Company as the provider of the Allocation Services hereunder, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any party desiring to exercise such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due right shall promptly give written notice to the Master other (the “Servicer Notice”) in accordance with the notice provisions of this Agreement and consult with the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) Person who would replace the Company in such capacities. Any successor to the Company in such capacities shall be agreed to by the Non-Lead Securitization Trust, against any Initial Bond Trustee and the Administrative Agent within ten (10) Business Days of the Indemnified Items to date of the extent of its pro rata share of such Indemnified ItemsServicer Notice, and such successor shall be subject to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each satisfaction of the applicable Indemnified Parties for Rating Agency Condition (as defined below) and otherwise satisfy the Non-Lead Securitization Note’s pro rata share provisions of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Initial Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer Agreement and the Operating Advisor (i) promptly following Receivables Agreements. “Business Day” means any day other than a Saturday, Sunday, or any holiday for national banks or any New York banking corporation in Columbus, Ohio, Chicago, Illinois or New York, New York. The Person named as replacement collection agent in accordance with this Section 4 is referred to herein as the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated “Replacement Collection Agent.” The parties hereto agree that any entity succeeding to exercise the rights of the “NonCompany as Receivables Sub-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust as Initial Property Servicer shall be third party beneficiaries of the foregoing provisionssame entity.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 3 contracts
Samples: Intercreditor Agreement (Ohio Phase-in-Recovery Funding LLC), Intercreditor Agreement (Ohio Phase-in-Recovery Funding LLC), Intercreditor Agreement (Ohio Phase-in-Recovery Funding LLC)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject as further provided in each case to the terms Section 5 of this this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder Each Noteholder acknowledges that each Senior Note Holder other Noteholder may elect, in its sole discretion, to include the related Senior its Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, a securitizing Noteholder at such Senior Note Holderthe securitizing Noteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, the Special Servicer Servicer, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder against another Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) The then Controlling Noteholder shall be entitled to exercise any notice and consent rights of the “directing holder,” “directing certificateholder,” “controlling class,” “controlling class representative” or any analogous class or holder under the Servicing Agreement except to the extent such Noteholder is expressly prohibited from exercising such rights under the terms of this Agreement in its capacity as the Controlling Noteholder. In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” ”, consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the such Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may The Master Servicer shall be the Securitization master servicer of the Mortgage Loan, and from time to time it (or the Trustee, to the extent provided in the Servicing Agreement) (i) shall be required to make Property Protection Advances and Administrative Advances with respect to the Mortgage Loan, subject to the terms of the Servicing Agreement change and this Agreement, and (ii) may be required to make P&I Advances on the interest allocable Lead Securitization Note, if and to the extent provided in the Servicing Agreement and this Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to reimbursement for a Property Protection Advance or Administrative Advance, first, from funds on deposit in the Collection Account or Companion Distribution Account for the Mortgage Loan that (in any case) represent amounts received on or in respect of the Mortgage Loan, and, then, in the case of Nonrecoverable Property Protection Advances or Nonrecoverable Administrative Advance, if such funds on deposit in the Collection Account or Companion Distribution Account with respect to the Mortgage Loan are insufficient, from general collections of the Lead Securitization as provided in the Servicing Agreement, as applicable, and from each Non-Lead Securitization Noteholder as provided below. The Master Servicer, the Special Servicer and the Trustee, as applicable, will be entitled to reimbursement for Advance Interest Amounts on a Property Protection Advance, Administrative Advance, a Nonrecoverable Property Protection Advance or Nonrecoverable Administrative Advance, in the manner and from the sources provided in the Servicing Agreement, including from general collections of the Lead Securitization, as applicable, and, in the case of Property Protection Advances or Administrative Advances, from general collections of each Non-Lead Securitization as provided herein. To the extent the Master Servicer, the Special Servicer or the Trustee, as applicable, obtains funds from general collections of the Lead Securitization as a reimbursement for a Nonrecoverable Property Protection Advance or Nonrecoverable Administrative Advance or any Advance Interest Amounts on a Property Protection Advance, Administrative Advance, a Nonrecoverable Property Protection Advance or Nonrecoverable Administrative Advance, each Non-Lead Securitization Noteholder (including from general collections or any other amounts from any Non-Lead Securitization Trust) shall be required to, promptly following notice from the Master Servicer, reimburse the Lead Securitization for its pro rata share of such Nonrecoverable Property Protection Advance, Nonrecoverable Administrative Advance or Advance Interest Amounts (it being understood that the pro rata share payable by each Non-Lead Securitization Noteholder under this paragraph would be determined by allocating such Nonrecoverable Property Protection Advance, Nonrecoverable Administrative Advance or Advance Interest Amount, as the case may be, first, to the Note B Holder, second, to the Note A-2 Holder and, then, to the Note A-1 Holders, in that order). A Non-Lead Master Servicer may be required to make P&I Advances on the related Non-Lead Securitization Note, from time to time, subject to the terms of the applicable Non-Lead Servicing Agreement, the Servicing Agreement and this Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to make their own recoverability determination with respect to a P&I Advance to be made on the Lead Securitization Note based on the information that they have on hand and in accordance with the Servicing Agreement. Each Non-Lead Master Servicer, Non-Lead Special Servicer and Non-Lead Trustee, as applicable, shall be entitled to make its own recoverability determination with respect to a P&I Advance to be made on the related Non-Lead Securitization Note based on the information that it has on hand and in accordance with the related Non-Lead Servicing Agreement. The Master Servicer and the Trustee, as applicable, and each Non-Lead Master Servicer and Non-Lead Trustee, as applicable, shall be required to notify the others of the amount of any payments due toits P&I Advance within two (2) Business Days of making such advance. If the Master Servicer, the Special Servicer or the Trustee, as applicable (with respect to the Lead Securitization Note) or a Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee, as applicable (with respect to the related Non-Lead Securitization Note), determines that a proposed P&I Advance, if made, would be non-recoverable or an outstanding P&I Advance is or would be non-recoverable, or if the Master Servicer, the Special Servicer or the Trustee, as applicable, subsequently determines that a proposed P&I Advance would be non-recoverable or an outstanding P&I Advance is or would be non-recoverable, then the Master Servicer or the Trustee (as provided in the Servicing Agreement, in the case of a determination of non-recoverability by the Master Servicer, the Special Servicer or the Trustee) or any Non-Lead Master Servicer or Non-Lead Trustee (as provided in the related Non-Lead Servicing Agreement, in the case of the a determination of non-recoverability by such Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee) shall notify the Master Servicer and the Trustee, or any Non-Lead Master Servicer and any Non-Lead Trustee, as the case may be, of the other Securitizations within two (2) business days of making such determination. Each of the Master Servicer, the Trustee, the related Non-Lead Master Servicer and the related Non-Lead Trustee, as applicable, will only be entitled to reimbursement for a P&I Advance and advance interest thereon that becomes non-recoverable first from the Collection Account or Companion Distribution Account from amounts allocable to the Note B-1 Holder or Note B-2 Holder or materially increase for which such P&I Advance was made, and then, if funds are insufficient, (i) in the Controlling Noteholder’s obligations or materially decrease case of the Controlling Noteholder’s rightsLead Securitization Note, remedies or protections hereunder or otherwise adversely affect from general collections of the Controlling Noteholder’s rights hereunderLead Securitization Trust, pursuant to the terms of the Servicing Agreement and (ii) in the case of any Non-Lead Securitization Note, from general collections of the related Securitization Trust, as and to the extent provided in the related Non-Lead Servicing Agreement.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing AgreementMaster Servicer Remittance Date;
(ii) the Note B Holder Controlling Noteholder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the such Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Non-Lead Securitization Noteholders or the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the rights of the Non-Lead Securitization Noteholders or the Note B Holder’s rights Holder with respect thereto; and
(v) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, a Rating Agency Confirmation shall be provided with respect to the commercial mortgage pass-through certificates issued in connection with each Non-Lead Securitization Trust to the same extent provided with respect to the commercial mortgage pass-through certificates issued in connection with the Lead Securitization.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) Each Servicer shall be required pursuant to the Servicing Agreement to service the Mortgage Loan in accordance with Accepted Servicing Practices, the terms of the Mortgage Loan Documents, the Servicing Agreement, this Agreement and applicable law, shall provide information to each Non-Lead Servicer to enable such Non-Lead Servicer to perform its servicing duties under the related Non-Lead Servicing Agreement and shall not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.
(g) At any time after the Securitization Date that the Note A-1-1 Mortgage Loan is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) Noteholders agree to cause the Mortgage Loan to be serviced by one or more servicers, each of which has been agreed upon by the Noteholders, pursuant to a servicing agreement that contains has servicing provisions which are the same as or more favorable terms substantially similar to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a any Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; , provided, further, however, that until a replacement servicing agreement is in placehas been entered into, the actual servicing of Lead Securitization Noteholder shall cause the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred serviced pursuant to the Note B Holder, the Note B Holder shall be entitled to terminate provisions of the Servicing Agreement as if such agreement were still in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the full force and effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) , by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit Servicer in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries or by any Person appointed by the Lead Securitization Noteholder that is a qualified servicer meeting the requirements of the foregoing provisionsServicing Agreement.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 3 contracts
Samples: Agreement Between Noteholders (CSAIL 2019-C16 Commercial Mortgage Trust), Agreement Between Noteholders (BBCMS Mortgage Trust 2019-C3), Agreement Between Noteholders (CSAIL 2019-C15 Commercial Mortgage Trust)
Servicing. (a) Each Noteholder acknowledges Pursuant to Section 2, the Company, in its role as collection agent hereunder, shall allocate and agrees thatremit funds received from Customers for the benefit of the Initial Bond Issuer, subject the Initial Bond Trustee[, the Additional Bond Issuer, the Additional Bond Trustee,] each Joining Transaction Issuer, each Joining Transaction Trustee, [the Buyer and the Receivables Purchasers,] respectively, and shall control the movement of such funds out of the Deposit Accounts in each case to accordance with the terms of this Agreement. To the extent permitted under the Initial Indenture, [the Mortgage Loan shall Additional Indenture,] each Joining Transaction Indenture [or the Receivables Purchase Agreement,] the Company may appoint a successor servicer or sub-servicer to act in any of its respective capacities under this Agreement so long as such successor servicer or sub-servicer has executed joinder documentation agreeing to act in such capacity and to be serviced prior to the Securitization Date under interim servicing arrangements as directed bound by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no the event shall that the Note B Holder be Initial Bond Trustee is entitled to and desires to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable toright, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by Initial Bond Agreements, to replace the Master Servicer or the Special Company as Initial Securitized Utility Tariff Property Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that [in the event that the funds received with respect Additional Bond Trustee is entitled to each respective Note and desires to exercise its right, pursuant to the Additional Bond Agreements, to replace the Company as Additional Securitization Property Servicer,] in the event that a Joining Transaction Trustee is entitled to and desires to exercise its right, pursuant to the such Joining Transaction Bond Agreements, to replace the Company as Joining Transaction Property Servicer [or in the event that the Receivables Purchasers are insufficient entitled to cover such Servicing Advances or additional trust fund expenses, (A) and desire to exercise their right to replace the Non-Lead Master Servicer will be required to, promptly following notice from Company as Receivables Servicer,] and therefore to terminate the Master Servicer or role of the Special Company as the Initial Securitized Utility Tariff Property Servicer, pay [as the Additional Securitization Property Servicer,] such Joining Transaction Securitization Property Servicer [or reimburse the Master as Receivables Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust], as applicable, out of general funds in hereunder, the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any party desiring to exercise such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due right shall promptly give written notice to the Master other parties hereto (the “Servicer Notice”) in accordance with the notice provisions of this Agreement and consult with the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses parties with respect to the Mortgage Loan) Person who would replace the Company in its capacity as Initial Securitized Utility Tariff Property Servicer, [as Additional Securitization Property Servicer,] as Joining Transaction Securitization Property Servicer [or as Receivables Servicer]. Any successor to the Company in any of such capacities shall be agreed to by the Non-Lead Securitization Trust, against any Initial Bond Trustee (acting at the written direction of the Indemnified Items to Majority Holders), [the extent Additional Bond Trustee,] each Joining Transaction Trustee [and the Administrative Agent] within ten (10) Business Days of its pro rata share the date of such Indemnified Itemsthe Servicer Notice, and such successor shall be subject to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each satisfaction of the applicable Indemnified Parties for Initial Bonds Rating Agency Condition (as defined below) [and the Non-Lead Securitization Note’s pro rata share Additional Bonds Rating Agency Condition (as defined below)] and otherwise satisfy the provisions of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Initial Servicing Agreement;
, [the Additional Servicing Agreement,] each Joining Transaction Servicing Agreement [and the Receivables Agreements]. For the avoidance of doubt, (i) the removal of the Company as the Initial Securitized Utility Tariff Property Servicer shall not automatically cause the removal of the Company [as the Additional Securitization Property Servicer,] as a Joining Transaction Securitization Property Servicer [or as the Receivables Servicer[, [(ii) the removal of the Company as the Additional Securitization Property Servicer shall not automatically cause the removal of the Company as the Initial Securitized Utility Tariff Property Servicer, as a Joining Transaction Securitization Property Servicer [or as the Receivables Servicer],] (iii) the Non-Lead Master removal of the Company as any Joining Transaction Property Servicer will be required to deliver to shall not automatically cause the Trustee, removal of the Certificate Administrator, Company as the Special Initial Securitized Utility Tariff Property Servicer, [as the Master Additional Securitization Property Servicer,] as any other Joining Transaction Property Servicer [or as the Receivables Servicer], [(iv) the removal of the Company as the Receivables Servicer shall not automatically cause the removal of the Company as the Initial Securitized Utility Tariff Property Servicer[, as the Additional Securitization Property Servicer] or as a Joining Transaction Property Servicer,] and (v) the roles of Initial Securitized Utility Tariff Property Servicer, [Additional Securitization Property Servicer,] each Joining Transaction Property Servicer [and Receivables Servicer] may be held by different Persons so long as each such Person has agreed to be bound by the provisions of this Agreement. “Business Day” means any day other than a Saturday, Sunday, or any holiday for national banks or any New York banking corporation in St. Louis, Missouri, New York, New York or the city in which the Corporate Trust Office (as defined in the Initial Indenture and the Operating Advisor (iAdditional Indenture) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into is located. Any Person named as replacement collection agent in accordance with this Section 4 is referred to herein as a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated “Replacement Collection Agent.” The parties hereto agree that any entity succeeding to exercise the rights of the “Non-Controlling Note Holder” under Company in its capacity as Initial Securitized Utility Tariff Property Servicer, [Additional Securitization Property Servicer,] a Joining Transaction Property Servicer [or as Receivables Servicer] hereunder shall execute customary joinder documentation agreeing to act in such capacity and to be bound by the terms of this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 2 contracts
Samples: Securitized Utility Tariff Property Purchase and Sale Agreement (Ameren Missouri Securitization Funding I, LLC), Securitized Utility Tariff Property Purchase and Sale Agreement (Ameren Missouri Securitization Funding I, LLC)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced pursuant to this Agreement and (i) prior to the Lead Securitization Date Date, under interim servicing arrangements (such arrangements, the “Interim Servicing Agreement”) as directed by the Note A-1A-4-1 Holder, subject to the terms of this Agreement (including the provisions hereof relating to Major Decisions and Extraordinary Major Decisions as if the Note A-4-1 Holder were the “Lead Master Servicer” or “Lead Special Servicer”) and from to the Servicing Standard, and (ii) after the Lead Securitization Date (except as otherwise set forth in Section 5(b))Date, pursuant to the Lead Securitization Servicing Agreement; provided that the Lead Master Servicer shall not be obligated to advance monthly payments of principal and/or or interest in respect of any of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower Mortgagor but shall be obligated to advance make Property Advances, including, but not limited to, advances of delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing AgreementAgreement (including a determination of recoverability thereunder). The Note B Holder Each Noteholder acknowledges that each Senior Note Holder Securitization-Eligible Noteholder may elect, in its sole discretion, to include the related Senior Securitization-Eligible Note in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such Holderother Noteholder, at such Senior Note Holderother Noteholder’s sole cost and expense, to effect such SecuritizationSecuritization as set forth in Section 41. Subject to the terms and conditions of this Agreement, each Each Noteholder hereby irrevocably and unconditionally consents agrees that the Lead Depositor shall have and own the exclusive right to select the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees Persons to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity appointed as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-initial Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-initial Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee initial Lead Certificate Administrator, the Custodian, the initial Lead Operating Advisor, the initial Lead Asset Representations Reviewer and the initial Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor Trustee under the related Lead Securitization Servicing Agreement in order and no Noteholder shall have right to comply with object to any one or more of such selections; provided, that the Non-foregoing statements shall not limit the right of the Controlling Noteholder (or its Controlling Noteholder Representative) to select the initial Lead Depositor’s requirements Special Servicer for the Mortgage Loan under the Securities Exchange Act of 1934, Note A-4-1 Securitization Servicing Agreement as amended, provided in Section 2(d) or to replace the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.Special
Appears in 2 contracts
Samples: Agreement Between Noteholders (Benchmark 2023-B39 Mortgage Trust), Agreement Between Noteholders (Bank5 2023-5yr2)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to this Agreement and the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization Note A-1 (and each the Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note A-2 pursuant to the terms of the related Non-Lead Securitization Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges Junior Noteholders acknowledge that each Senior of the Note A-1 Holder and the Note A-2 Holder may elect, in its sole discretion, to include the related Senior Note A-1 and/or Note A-2 in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such the Note A-1 Holder and the Note A-2 Holder, at such Senior the Note A-1 Holder’s and the Note A-2 Holder’s, as applicable, sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder Noteholders set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder against any other Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder.
(b) In no event The then Controlling Noteholder shall the Note B Holder be entitled to exercise any notice and consent rights of the “directing holder,” consulting “directing certificateholder,” “controlling class,” “controlling class representative” or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder such Noteholder is given expressly prohibited from exercising such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder Controlling Noteholder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) if an event of default under the Servicing Agreement has occurred (A) with respect to the Master Servicer under the Servicing Agreement that affects a Noteholder or any class of commercial mortgage securities backed by a Note or a participation interest in a Note, and the Master Servicer is not otherwise terminated under the Servicing Agreement, then the Note C Holder or its designees (if the Note C Holder is the Controlling Noteholder) shall be entitled to direct the Trustee to appoint a sub-servicer solely with respect to the Mortgage Loan (or if the Mortgage Loan is currently being sub-serviced, to replace the current sub-servicer, but only if such original sub-servicer is in default under the related sub-servicing agreement); and (B) the appointment (or replacement) of a sub-servicer with respect to the Mortgage Loan, as contemplated in clause (A) above, will in any event be subject to written confirmation from each Rating Agency that such appointment would not, in and of itself, cause a downgrade, qualification or withdrawal of the then-current ratings assigned to the securities issued in connection with any Securitization;
(ii) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(iiiii) the Note B Holder Controlling Noteholder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provideprovide access to, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person the Controlling Noteholder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or the Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Lead Securitization Servicing Agreement Trust that includes other Notes but not limited to standard CREFC® reportsCREFC reports and Asset Status Reports, provided that if an interest in Note B the Controlling Noteholder or the related Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder Controlling Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreementstrategy;
(iiiiv) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(ivv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder each Junior Noteholder if such amendment would materially and adversely affect its rights thereunder; and
(vi) the Special Servicer appointed by the Note C Holder shall be named as the Special Servicer for the Mortgage Loan or under the Note B Holder’s rights with respect theretoServicing Agreement as of the closing of the Lead Securitization, as long as such Special Servicer satisfies the requirements of the Servicing Agreement.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Lead Securitization Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder Lead Securitization Noteholder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B HolderJunior Noteholders, in substance, to those in the Servicing Agreement (including, without limitation, all applicable provisions relating to delivery of information and reports necessary for any Non-Lead Securitization Servicing Agreementto comply with any applicable reporting requirements under the Securities Exchange Act of 1934, and (iias amended) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that if Note A-2 is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency with respect to such subsequent servicing agreement; provided, further, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder Lead Securitization Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder Lead Securitization Noteholder and the special servicer appointed by the Controlling Noteholder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the The Note B A-2 Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holderagrees that, if its Non-Lead Securitization Note A-2 is included in a Securitization, it shall cause the applicable Non-Lead Securitization Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note A-2 Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Securitization Servicing Agreement for the Non-Lead Securitization Note A-2 Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Securitization Servicing Agreement for the Non-Lead Securitization Note A-2 Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note A-2 are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization NoteNote A-2’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Securitization Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and Servicer, the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization NoteNote A-2, notice of the deposit of the Non-Lead Securitization Note A-2 into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note HolderPari Passu Noteholder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Securitization Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note HolderPari Passu Noteholder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the each Non-Lead Securitization Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(ih) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes Note A-1 and Note A-2 will be allocated by the Master Servicer between the Senior NotesNote A-1 and Note A-2, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note A-2 to the related Non-Lead Securitization Note A-2 Holder.
(ji) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note A-2 Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
(j) Each Note A-2 Holder shall give each of the parties to the Servicing Agreement and the Note C Holder (that will not also be a party to the related Non-Lead Securitization Servicing Agreement) notice of the Non-Lead Securitization in writing (which may be by e-mail) promptly after the related Non-Lead Securitization Date. Such notice shall contain contact information for each of the parties to the related Non-Lead Securitization Servicing Agreement. In addition, after the related Non-Lead Securitization Date, the related Note A-2 Holder shall send a copy of the related Non-Lead Securitization Servicing Agreement to each of the parties to the Servicing Agreement and the Note C Holder.
(k) If Note A-2 becomes the subject of an Asset Review pursuant to the related Non-Lead Securitization Servicing Agreement, the Master Servicer, the Special Servicer, the Trustee and the Custodian shall reasonably cooperate with such Non-Lead Asset Representations Reviewer in connection with such Asset Review by providing such Non-Lead Asset Representations Reviewer with any documents reasonably requested by such Non-Lead Asset Representations Reviewer, but only to the extent that such documents are in the possession of the Master Servicer, the Special Servicer, the Trustee or the Custodian, as the case may be, and are not in the possession of the Non-Lead Asset Representations Reviewer (and the Non-Lead Asset Representations Reviewer has informed such party that it has first requested, and not received, the documents from the master servicer, special servicer and custodian for the applicable Non-Lead Securitization).
Appears in 2 contracts
Samples: Agreement Between Noteholders (GS Mortgage Securities Trust 2016-Gs4), Agreement Between Noteholders (GS Mortgage Securities Trust 2016-Gs3)
Servicing. (a) Each Noteholder acknowledges Guarantor hereby agrees to service the Underlying Mortgage Loans and agrees that, subject Underlying REO Properties consistent with the degree of skill and care that Guarantor customarily requires with respect to similar Underlying Mortgage Loans and Underlying REO Properties owned or managed by it and in each case to accordance with Accepted Servicing Practices. Guarantor shall service the terms of Underlying Mortgage Loans and Underlying REO Properties in accordance with this Agreement. Guarantor hereby agrees to (i) comply with all applicable Federal, State and local laws and regulations, (ii) maintain all state and federal licenses necessary for it to perform its servicing responsibilities hereunder and (iii) not impair the rights of Buyer in any Underlying Mortgage Loans and Underlying REO Properties or any payment thereunder. Buyer may terminate the servicing of any Underlying Mortgage Loan with the then existing servicer in accordance with Section 19(d) hereof.
(b) Guarantor shall hold or cause to be serviced prior held all escrow funds collected by Guarantor with respect to any Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties in trust accounts and shall apply the Securitization Date under interim servicing arrangements as directed same for the purposes for which such funds were collected.
(c) Guarantor shall deposit all collections received by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments it on behalf of principal or interest in respect Seller on account of the Notes other than the Notes included Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties in the Lead Securitization Collection Account no later than two (2) Business Days following receipt.
(d) Upon the occurrence and each Non-Lead Master Servicer during the continuation of an Event of Default or Termination Event hereunder, Buyer shall be required have the right to advance monthly payments immediately terminate the Servicer’s right to service the Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties without payment of principal any penalty or termination fee. Guarantor and interest on Seller shall cooperate in transferring the applicable Non-Lead Securitization Note pursuant to the terms servicing of the related Non-Lead Servicing Agreement) if such principal or interest is not paid Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties to a successor servicer appointed by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, Buyer in its sole discretion. For the avoidance of doubt any termination of the Servicer’s rights to service by the Buyer as a result of an Event of Default shall be deemed part of an exercise of the Buyer’s rights to cause the liquidation, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions termination or acceleration of this Agreement. Upon the occurrence and during the continuation of an Event of Default or Termination Event hereunder, each Noteholder hereby irrevocably and unconditionally consents Guarantor will comply with the Buyer’s instructions with respect to the appointment Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties, to the extent permitted by applicable law.
(e) If Guarantor or Seller should discover that, for any reason whatsoever, any entity responsible to Seller by contract for managing or servicing any such Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties has failed to perform fully Seller’s obligations under the Facility Documents or any of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer obligations of such entities with respect to the Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties, Seller shall promptly notify Buyer.
(f) For the avoidance of doubt, neither Seller nor Guarantor shall retain any economic rights to the servicing of the Purchased Assets, Pledged Assets, Underlying Mortgage Loan in accordance with this Agreement Loans and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other NoteholderUnderlying REO Properties; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B Guarantor shall continue to service the Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties hereunder as part of its Obligations hereunder. As such, Seller and Guarantor expressly acknowledge that the Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties are sold or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled pledged to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special ServicerBuyer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to on a “servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreementreleased” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisionsbasis.
(g) If the Note B Holder exercises its purchase option in accordance Seller shall, with Section 12 hereofrespect to any Servicer (other than Guarantor), upon the Mortgage Loan being transferred provide promptly to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
Buyer (i) a Servicer Notice addressed to and agreed to by the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration Servicer of the Notes related Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties, advising such Servicer of such matters as Buyer may reasonably request, including recognition by the Servicer of Buyer’s interest in such Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties and the Mortgaged PropertyServicer’s agreement that upon receipt of notice of an Event of Default from Buyer, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to it will follow the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out instructions of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses Buyer with respect to the Purchased Assets, Pledged Assets, Underlying Mortgage Loan) by the Non-Lead Securitization Trust, against Loans and Underlying REO Properties and any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein related Income with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holderthereto.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 2 contracts
Samples: Master Repurchase Agreement (Rocket Companies, Inc.), Master Repurchase Agreement (Rocket Companies, Inc.)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by pursuant to the Note A-1-1 Holder Interim Servicing Agreement and from and after the Securitization Date (except as otherwise set forth in Section 5(b2(e)), pursuant to the Securitization Servicing Agreement and, in each case, in accordance with this Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the a Lead Securitization Senior Note (and each no Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on in respect of the applicable Notes other than a Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing AgreementSenior Note) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder Each Noteholder acknowledges that each a Senior Noteholder or the Note A-B Holder may elect, in its sole discretion, to include the related its Senior Note or Note A-B in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such Senior Noteholder or Note A-B Holder, at such Senior Noteholder’s or Note A-B Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with and consent with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement and this Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the such Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer be required to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder.
(b) In no event The Controlling Noteholder (or any Controlling Noteholder Representative appointed by it acting on its behalf) shall exercise the Note B Holder be entitled rights and powers granted to exercise any rights of the “directing holderControlling Holder”, “Directing Certificateholder” consulting class or any analogous class “Directing Holder” (or holder similar term) under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as with respect to the Controlling NoteholderMortgage Loan.
(c) The Securitization Servicing Agreement shall contain the Servicing Standard (which shall require, among other things, that each Servicer, in servicing the Mortgage Loan, must take into account the interests of each Noteholder, taking into account that (1) Note B is junior to Note A-B and (2) Note A-B is junior to Note A). In no event may the Securitization Servicing Agreement change the interest or principal allocable to, or the amount of any payments due to, the Note B-1 A-B Holder or the Note B-2 B Holder or materially increase the Controlling NoteholderNote A-B Holder’s or the Note B Holder’s obligations or materially decrease the Controlling NoteholderNote A-B Holder’s or the Note B Holder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders in accordance with Sections 3 and 4 hereof on the “master servicer remittance date” under the Securitization Servicing AgreementMaster Servicer Remittance Date;
(ii) each of the Note A-B Holder and the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person either the Note A-B Holder or the Note B Holder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Securitization Servicing Agreement Trust that includes other Notes, including, but not limited to standard CREFC® reports, provided subject to limitations or information that if an interest in may be made available to a Note A-B Holder or the a Note B Holder that is held by the a Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note A-B Holder or the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the rights of the Note A-B Holder or the Note B Holder’s rights , as applicable, with respect theretothereto (as determined by the Note A-B Holder or the Note B Holder, as applicable);
(v) the Securitization Servicing Agreement shall contain, the additional provisions set forth on Schedule I;
(vi) provide that any inconsistency between the Servicing Agreement and this Agreement shall be governed by and determined in accordance with the terms of this Agreement; and
(vii) recognize the respective rights and obligations of the Noteholders hereunder, including with respect to the making of payment to the Noteholders and the rights of the Noteholders to approve matters and make decisions hereunder.
(e) Notwithstanding anything to the contrary contained in this Agreement, any Any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the a Lead Senior Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder Lead Senior Noteholder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement mutually agreeable to each Non-Lead Senior Noteholder, the Note A-B Holder and the Note B Holder that contains servicing provisions which are the same as or more favorable to Note A-B Holder and the Non-Controlling Note Holders and Note B Holder, as applicable, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that (1) if a Non-Lead Securitization Senior Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received Agency with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.and
Appears in 2 contracts
Samples: Co Lender Agreement (BBCMS Mortgage Trust 2019-C4), Co Lender Agreement (CSAIL 2019-C15 Commercial Mortgage Trust)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to this Agreement and the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization Note A-1 (and each the Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note A-2 pursuant to the terms of the related Non-Lead Securitization Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges Junior Noteholders acknowledge that each Senior of the Note A-1 Holder and the Note A-2 Holder may elect, in its sole discretion, to include the related Senior Note A-1 and/or Note A-2 in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such the Note A-1 Holder and the Note A-2 Holder, at such Senior the Note A-1 Holder’s and the Note A-2 Holder’s, as applicable, sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder Noteholders set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder against any other Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder.
(b) In no event The then Controlling Noteholder shall the Note B Holder be entitled to exercise any notice and consent rights of the “directing holder,” consulting “directing certificateholder,” “controlling class,” “controlling class representative” or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder such Noteholder is given expressly prohibited from exercising such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder Controlling Noteholder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) if an event of default under the Servicing Agreement has occurred (A) with respect to the Master Servicer under the Servicing Agreement that affects a Noteholder or any class of commercial mortgage securities backed by a Note or a participation interest in a Note, and the Master Servicer is not otherwise terminated under the Servicing Agreement, then the Note C Holder or its designees (if the Note C Holder is the Controlling Noteholder) shall be entitled to direct the Trustee to appoint a sub-servicer solely with respect to the Mortgage Loan (or if the Mortgage Loan is currently being sub-serviced, to replace the current sub-servicer, but only if such original sub-servicer is in default under the related sub-servicing agreement); and (B) the appointment (or replacement) of a sub-servicer with respect to the Mortgage Loan, as contemplated in clause (A) above, will in any event be subject to written confirmation from each Rating Agency that such appointment would not, in and of itself, cause a downgrade, qualification or withdrawal of the then-current ratings assigned to the securities issued in connection with any Securitization;
(ii) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(iiiii) the Note B Holder Controlling Noteholder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provideprovide access to, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person the Controlling Noteholder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or the Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Lead Securitization Servicing Agreement Trust that includes but is not limited to standard CREFC® reportsCREFC reports and Asset Status Reports, provided that if an interest in Note B the Controlling Noteholder or the related Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder Controlling Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Informationexcluded information” or analogous term under the Securitization Servicing Agreement;
(iiiiv) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(ivv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder each Junior Noteholder if such amendment would materially and adversely affect its rights thereunder; and
(vi) the Special Servicer appointed by the Note C Holder shall be named as the Special Servicer for the Mortgage Loan or under the Note B Holder’s rights with respect theretoServicing Agreement as of the closing of the Lead Securitization, as long as such Special Servicer satisfies the requirements of the Servicing Agreement.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Lead Securitization Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder Lead Securitization Noteholder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B HolderJunior Noteholders, in substance, to those in the Servicing Agreement (including, without limitation, all applicable provisions relating to delivery of information and reports necessary for any Non-Lead Securitization Servicing Agreementto comply with any applicable reporting requirements under the Securities Exchange Act of 1934, and (iias amended) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that if Note A-2 is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency with respect to such subsequent servicing agreement; provided, further, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder Lead Securitization Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, ; provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agencyadvance monthly payments of principal or interest; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder Lead Securitization Noteholder and the special servicer appointed by the Controlling Noteholder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the The Note B A-2 Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holderagrees that, if its Non-Lead Securitization Note A-2 is included in a Securitization, it shall cause the applicable Non-Lead Securitization Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note A-2 Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Securitization Servicing Agreement for the Non-Lead Securitization Note A-2 Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Securitization Servicing Agreement for the Non-Lead Securitization Note A-2 Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note A-2 are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization NoteNote A-2’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Securitization Servicing Agreement;
(iii) the Non-Lead Master Servicer Certificate Administrator will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and Servicer, the Operating Advisor (i) promptly following the Certificate Administrator’s receipt of notice of the Securitization of the Non-Lead Securitization NoteNote A-2, notice of the deposit of the Non-Lead Securitization Note A-2 into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note HolderPari Passu Noteholder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Securitization Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note HolderPari Passu Noteholder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the each Non-Lead Securitization Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(ih) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes Note A-1 and Note A-2 will be allocated by the Master Servicer between the Senior NotesNote A-1 and Note A-2, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note A-2 to the related Non-Lead Securitization Note A-2 Holder.
(ji) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note A-2 Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
(j) Each Note A-2 Holder shall give each of the parties to the Servicing Agreement and the Note C Holder (that will not also be a party to the related Non-Lead Securitization Servicing Agreement) notice of the Non-Lead Securitization in writing (which may be by e-mail) promptly after the related Non-Lead Securitization Date. Such notice shall contain contact information for each of the parties to the related Non-Lead Securitization Servicing Agreement. In addition, after the related Non-Lead Securitization Date, the related Note A-2 Holder shall send a copy of the related Non-Lead Securitization Servicing Agreement to each of the parties to the Servicing Agreement and the Note C Holder.
(k) If Note A-2 becomes the subject of an Asset Review pursuant to the related Non-Lead Securitization Servicing Agreement, the Master Servicer, the Special Servicer, the Trustee and the Custodian shall reasonably cooperate with such Non-Lead Asset Representations Reviewer in connection with such Asset Review by providing such Non-Lead Asset Representations Reviewer with any documents reasonably requested by such Non-Lead Asset Representations Reviewer, but only to the extent that such documents are in the possession of the Master Servicer, the Special Servicer, the Trustee or the Custodian, as the case may be, and are not in the possession of the Non-Lead Asset Representations Reviewer (and the Non-Lead Asset Representations Reviewer has informed such party that it has first requested, and not received, the documents from the master servicer, special servicer and custodian for the applicable Non-Lead Securitization).
Appears in 2 contracts
Samples: Agreement Between Noteholders (GS Mortgage Securities Trust 2017-Gs5), Agreement Between Noteholders (GS Mortgage Securities Trust 2016-Gs4)
Servicing. (a) Each Noteholder The Servicer shall service the Purchased Mortgage Loans in accordance with Accepted Servicing Practices (as defined in the Master Repurchase Agreement) and the Servicing Addendum. The Servicer shall not resign as servicer or transfer the servicing of any Purchased Mortgage Loan without the prior written consent of the Required Noteholders and the Standby Servicer. The Servicer shall not be permitted to resign unless a successor servicer has been appointed or the Standby Servicer has assumed the role of Servicer. If the Standby Servicer is unable or unwilling to act as successor Xxxxxxxx, it may petition a court of competent jurisdiction to appoint such successor. The Indenture Trustee shall provide the Rating Agency with written notice upon any resignation of the Servicer pursuant to Section 4.3. The Servicer shall hold or cause to be held all escrow funds collected with respect to the Purchased Mortgage Loans in trust accounts (each of which shall be an Eligible Account) in trust for the Holders of the Notes and shall apply the same for the purposes for which such funds were collected. The Servicer will maintain all Servicing Records not in the possession of the Mortgage Loan Custodian in good and complete condition in accordance with industry practices for assets similar to the Purchased Mortgage Loans and preserve them against loss. On each Business Day, the Indenture Trustee shall electronically provide the Servicer with a schedule of Mortgage Loans subject to the Master Repurchase Agreement. In connection with the foregoing, the Servicer hereby acknowledges and agrees that, subject in each case to the terms of this Agreement, Servicer is servicing the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, Loans subject to the terms Master Repurchase Agreement for the benefit of Issuer and the Indenture Trustee, on behalf of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other NoteholderNoteholders.
(b) In no event Except as set forth below, the Servicer shall the Note B Holder be entitled to exercise any rights cause all Income received by it on account of the “directing holder” consulting class Purchased Mortgage Loans to be deposited in the Buyer’s Account within one (1) Business Day of receipt; provided, however, that, if the Standby Servicer is the Servicer, such amounts shall be deposited within two (2) Business Days of receipt. Notwithstanding the foregoing, following the occurrence and continuance of an Event of Default or any analogous class a Repo Trigger Event and a Responsible Officer of the Indenture Trustee receiving written notice or holder under having actual knowledge of such an event, the Securitization Servicing Agreement except Indenture Trustee will direct the Servicer to remit all Income into the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling NoteholderPayment Account.
(c) In no event may The Payment Account shall only contain collections on the Securitization Servicing Agreement change Purchased Assets subject to this Indenture. As further provided in Section 5.1 hereof, the interest allocable toPayment Account shall be held at U.S. Bank National Association, in the name of and under the sole control of the Indenture Trustee. Neither the Seller nor the Servicer shall have any right to direct any disposition of funds from the Payment Account or the amount to give any instructions of any payments due tokind to the Indenture Trustee with respect to the Payment Account. Upon making any deposit into Payment Account, the Note B-1 Holder or Note B-2 Holder or materially increase Servicer shall provide the Controlling Noteholder’s obligations or materially decrease Indenture Trustee with the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect loan identification number and the Controlling Noteholder’s rights hereunderprincipal and interest attributable to such Mortgage Loan which shall have been deposited into the Payment Account.
(d) The Securitization Servicer shall service the Purchased Mortgage Loans for a term of thirty (30) days (the “Servicing Agreement Term”) commencing as of the date of the related initial Purchase Date. Each such Servicing Term shall contain provisions be deemed to the effect that:
be renewed or terminated. If such Servicing Term is not renewed (which is hereby deemed renewed unless (i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization a Servicing Agreement;
Termination Event has occurred and is continuing or (ii) if the Note B Holder Seller is the Servicer, a Repo Trigger Event under the Master Repurchase Agreement has occurred and is continuing), the Servicer agrees that the Indenture Trustee may terminate the Servicer as servicer hereunder at will and the Servicer shall transfer the servicing as described below.
(e) On each Reporting Date, the Servicer shall furnish to the Issuer, the Rating Agency and the Indenture Trustee the Asset Tape for the Purchased Mortgage Loans as of the last day of the calendar month preceding the related Reporting Date and a Monthly Servicer Report for such Reporting Date; provided, that, with respect to the first Reporting Date, the Asset Tape and the Monthly Servicer Report for the Purchased Mortgage Loans will be as of the Closing Date. Included in such Asset Tape shall be entitled to receivethe delinquency status of each Purchased Mortgage Loan without including in such determination any payment holidays or skip payments. If the Servicer should discover that, and for any reason whatsoever, the Master Servicer and the Special Servicer shall provide, or any information, relating entity responsible to the Servicer for managing or servicing any such Purchased Mortgage Loan has failed to perform fully the Servicer’s obligations under the Program Agreements or any of the obligations of such entities with respect to the Purchased Mortgage Loan, the Mortgage Loan Borrower Servicer shall promptly notify the Indenture Trustee and the Standby Servicer.
(f) Neither the Servicer nor those acting on the Servicer’s behalf shall amend, modify, or the Mortgaged Property as such Person may reasonably request and in the possession waive any term or condition of, or collected settle or known bycompromise any claim in respect of, any item of the Master Servicer or Special Servicer relating to the Purchased Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report Loans or any other information relating to the Special Servicer’s workout strategy related rights or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under Program Agreements without the Securitization Servicing Agreement and prior written consent of Holders of 66 2/3% of each Class of Notes, except if such action may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended taken without the consent of the Note B Holder any Holders if such amendment would action does not (i) affect the amount or timing of any payment of principal or interest payable with respect to a Purchased Mortgage Loan, extend its scheduled maturity date, modify its interest rate, or constitute a cancellation, reduction or discharge of its outstanding principal balance or (ii) materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed security afforded by the Master Servicer real property, furnishings, fixtures, or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean equipment securing such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisionsAsset.
(g) If The Indenture Trustee is not responsible for the Note B Holder exercises Servicer’s performance of its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holderobligations under this Indenture, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note Servicer is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration not an agent of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the NotesIndenture Trustee, and that in under no circumstances shall the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances Indenture Trustee be liable for any action or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration inaction of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 2 contracts
Samples: Indenture (loanDepot, Inc.), Indenture (loanDepot, Inc.)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject as further provided in each case to the terms Section 5 of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder Each Noteholder acknowledges that each Senior Note Holder other Noteholder may elect, in its sole discretion, to include the related Senior its Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, a securitizing Noteholder at such Senior Note Holderthe securitizing Noteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, the Special Servicer Servicer, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder against another Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) The then Controlling Noteholder shall be entitled to exercise any notice and consent rights of the “directing holder,” “directing certificateholder,” “controlling class,” “controlling class representative” or any analogous class or holder under the Servicing Agreement except to the extent such Noteholder is expressly prohibited from exercising such rights under the terms of this Agreement in its capacity as the Controlling Noteholder. In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder,” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the such Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may The Master Servicer shall be the Securitization master servicer of the Mortgage Loan, and from time to time it (or the Trustee, to the extent provided in the Servicing Agreement) (i) shall be required to make Property Protection Advances and Administrative Advances with respect to the Mortgage Loan, subject to the terms of the Servicing Agreement change and this Agreement, and (ii) may be required to make P&I Advances on the interest allocable Lead Securitization Note, if and to the extent provided in the Servicing Agreement and this Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to reimbursement for a Property Protection Advance or Administrative Advance, first, from funds on deposit in the Collection Account or Companion Distribution Account for the Mortgage Loan that (in any case) represent amounts received on or in respect of the Mortgage Loan, and, then, in the case of Nonrecoverable Property Protection Advances or Nonrecoverable Administrative Advance, if such funds on deposit in the Collection Account or Companion Distribution Account with respect to the Mortgage Loan are insufficient, from general collections of the Lead Securitization as provided in the Servicing Agreement, as applicable, and from each Non-Lead Securitization Noteholder as provided below. The Master Servicer, the Special Servicer and the Trustee, as applicable, will be entitled to reimbursement for Advance Interest Amounts on a Property Protection Advance, Administrative Advance, a Nonrecoverable Property Protection Advance or Nonrecoverable Administrative Advance, in the manner and from the sources provided in the Servicing Agreement, including from general collections of the Lead Securitization, as applicable, and, in the case of Property Protection Advances or Administrative Advances, from general collections of each Non-Lead Securitization as provided herein. To the extent the Master Servicer, the Special Servicer or the Trustee, as applicable, obtains funds from general collections of the Lead Securitization as a reimbursement for a Nonrecoverable Property Protection Advance or Nonrecoverable Administrative Advance or any Advance Interest Amounts on a Property Protection Advance, Administrative Advance, a Nonrecoverable Property Protection Advance or Nonrecoverable Administrative Advance, each Non-Lead Securitization Noteholder shall be required to, promptly following notice from the Master Servicer, reimburse (including from general collections or any other amounts from any Non-Lead Securitization Trust) the Lead Securitization for its pro rata share of such Nonrecoverable Property Protection Advance, Nonrecoverable Administrative Advance or Advance Interest Amounts (it being understood that the pro rata share payable by each Non-Lead Securitization Noteholder under this paragraph would be determined by allocating such Nonrecoverable Property Protection Advance, Nonrecoverable Administrative Advance or Advance Interest Amount, as the case may be, first, to the Note B Holder, and then, to the Note A-1 Holders, in that order). A Non-Lead Master Servicer may be required to make P&I Advances on the related Non-Lead Securitization Note, from time to time, subject to the terms of the applicable Non-Lead Servicing Agreement, the Servicing Agreement and this Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to make their own recoverability determination with respect to a P&I Advance to be made on the Lead Securitization Note based on the information that they have on hand and in accordance with the Servicing Agreement. Each Non-Lead Master Servicer, Non-Lead Special Servicer and Non-Lead Trustee, as applicable, shall be entitled to make its own recoverability determination with respect to a P&I Advance to be made on the related Non-Lead Securitization Note based on the information that it has on hand and in accordance with the related Non-Lead Servicing Agreement. The Master Servicer and the Trustee, as applicable, and each Non-Lead Master Servicer and Non-Lead Trustee, as applicable, shall be required to notify the others of the amount of any payments due toits P&I Advance within two (2) Business Days of making such advance. If the Master Servicer, the Special Servicer or the Trustee, as applicable (with respect to the Lead Securitization Note) or a Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee, as applicable (with respect to the related Non-Lead Securitization Note), determines that a proposed P&I Advance, if made, would be non-recoverable or an outstanding P&I Advance is or would be non-recoverable, or if the Master Servicer, the Special Servicer or the Trustee, as applicable, subsequently determines that a proposed P&I Advance would be non-recoverable or an outstanding P&I Advance is or would be non-recoverable, then the Master Servicer or the Trustee (as provided in the Servicing Agreement, in the case of a determination of non-recoverability by the Master Servicer, the Special Servicer or the Trustee) or any Non-Lead Master Servicer or Non-Lead Trustee (as provided in the related Non-Lead Servicing Agreement, in the case of the a determination of non-recoverability by such Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee) shall notify the Master Servicer and the Trustee, or any Non-Lead Master Servicer and any Non-Lead Trustee, as the case may be, of the other Securitizations within two (2) business days of making such determination. Each of the Master Servicer, the Trustee, the related Non-Lead Master Servicer and the related Non-Lead Trustee, as applicable, will only be entitled to reimbursement for a P&I Advance and advance interest thereon that becomes non-recoverable first from the Collection Account or Companion Distribution Account from amounts allocable to the Note B-1 Holder or Note B-2 Holder or materially increase for which such P&I Advance was made, and then, if funds are insufficient, (i) in the Controlling Noteholder’s obligations or materially decrease case of the Controlling Noteholder’s rightsLead Securitization Note, remedies or protections hereunder or otherwise adversely affect from general collections of the Controlling Noteholder’s rights hereunderLead Securitization Trust, pursuant to the terms of the Servicing Agreement and (ii) in the case of any Non-Lead Securitization Note, from general collections of the related Securitization Trust, as and to the extent provided in the related Non-Lead Servicing Agreement.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing AgreementMaster Servicer Remittance Date;
(ii) the Note B Holder Controlling Noteholder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the such Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Non-Lead Securitization Noteholders or the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the rights of the Non-Lead Securitization Noteholders or the Note B Holder’s rights Holder with respect thereto; and
(v) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, a Rating Agency Confirmation shall be provided with respect to the commercial mortgage pass-through certificates issued in connection with each Non-Lead Securitization Trust to the same extent provided with respect to the commercial mortgage pass-through certificates issued in connection with the Lead Securitization.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) Each Servicer shall be required pursuant to the Servicing Agreement to service the Mortgage Loan in accordance with Accepted Servicing Practices, the terms of the Mortgage Loan Documents, the Servicing Agreement, this Agreement and applicable law, shall provide information to each Non-Lead Servicer to enable such Non-Lead Servicer to perform its servicing duties under the related Non-Lead Servicing Agreement and shall not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.
(g) At any time after the Securitization Date that the Note A-1-1 Mortgage Loan is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) Noteholders agree to cause the Mortgage Loan to be serviced by one or more servicers, each of which has been agreed upon by the Noteholders, pursuant to a servicing agreement that contains has servicing provisions which are the same as or more favorable terms substantially similar to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a any Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; , provided, further, however, that until a replacement servicing agreement is in placehas been entered into, the actual servicing of Lead Securitization Noteholder shall cause the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred serviced pursuant to the Note B Holder, the Note B Holder shall be entitled to terminate provisions of the Servicing Agreement as if such agreement were still in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the full force and effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) , by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit Servicer in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries or by any Person appointed by the Lead Securitization Noteholder that is a qualified servicer meeting the requirements of the foregoing provisionsServicing Agreement.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 2 contracts
Samples: Agreement Between Noteholders (CSAIL 2019-C18 Commercial Mortgage Trust), Agreement Between Noteholders (BBCMS Mortgage Trust 2019-C5)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by pursuant to the Note A-1-1 Holder Interim Servicing Agreement and from and after the Securitization Date (except as otherwise set forth in Section 5(b2(e)), pursuant to the Securitization Servicing Agreement, in each case, in accordance with this Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization Senior Note (and each the Non-Lead Master Servicer shall not be required to advance monthly payments of principal and interest on in respect of the applicable Notes other than the Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing AgreementSenior Note) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder Junior Noteholder acknowledges that each a Senior Note Holder Noteholder may elect, in its sole discretion, to include the related its applicable Senior Note in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such HolderSenior Noteholder, at such Senior Note HolderNoteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Lead Depositor and agrees to reasonably cooperate with and consent with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement and this Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder.
(b) In no event The Controlling Noteholder (or any Junior Operating Advisor appointed by it acting on its behalf) shall exercise the Note B Holder be entitled rights and powers granted to exercise any rights of the “directing holderControlling Holder”, “Directing Certificateholder” consulting class or any analogous class “Directing Holder” (or holder similar term) under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as with respect to the Controlling NoteholderMortgage Loan.
(c) The Securitization Servicing Agreement shall contain the Servicing Standard. In no event may the Securitization Servicing Agreement change the interest or principal allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder Junior Noteholder or materially increase the Controlling Junior Noteholder’s obligations or materially decrease the Controlling Junior Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders in accordance with Sections 3 and 4 hereof on the “master servicer remittance date” under the Securitization Servicing AgreementMaster Servicer Remittance Date;
(ii) the Note B Holder Junior Noteholder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower borrower or the Mortgaged Property as such Person the Junior Noteholder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Securitization Servicing Agreement Trust that includes other Notes but not limited to standard CREFC® reports, provided that if an interest in the Junior Note B or the Note B Holder Junior Noteholder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder Junior Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder Junior Noteholder if such amendment would materially and adversely affect the Mortgage Loan or the Note B HolderJunior Noteholder’s rights with respect theretothereto (as determined by the Junior Noteholder);
(v) the additional provisions set forth on Schedule I; and
(vi) if the Securitization Servicing Agreement is the Note A-1 PSA, the additional provisions set forth on Schedule II.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Lead Senior Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder Lead Senior Noteholder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement mutually agreeable to the Senior Noteholders and the Junior Noteholder that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B HolderJunior Noteholder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that if a Non-Lead Senior Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency with respect to such subsequent servicing agreement; provided, further, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder Lead Senior Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder the Lead Senior Noteholder with the consent of the Junior Noteholder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If Upon the occurrence of the Note B Holder exercises its purchase option A-1 Securitization, the Lead Senior Noteholder shall give each other holder (and the applicable servicer and trustee, if any other Note is in accordance with Section 12 hereof, upon a Securitization) notice of the Mortgage Loan being transferred Lead Securitization in writing (which may be by e-mail) prior to or promptly following the related Securitization Date. Such notice shall contain contact information for each of the parties to the related Securitization Servicing Agreement and the identity of the controlling class representative under such Securitization Servicing Agreement. In addition, after the closing of the Note B HolderA-1 Securitization, the Note B Holder related Lead Senior Noteholder shall be entitled to terminate send a copy of the related Securitization Servicing Agreement in its sole discretion without payment to each of any termination feesthe other holders.
(h) Each The Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under contain the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisionsprovisions set forth in Schedule III.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 2 contracts
Samples: Co Lender Agreement (CSAIL 2017-C8 Commercial Mortgage Trust), Co Lender Agreement (Citigroup Commercial Mortgage Trust 2017-P7)
Servicing. (a) Each Noteholder acknowledges The Senior Noteholders acknowledge and agrees that, subject in each case to the terms of this Agreement, agree that the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization A/B Co-Lender Agreement and the Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization .
(and each Non-Lead b) The Master Servicer shall be required the master servicer of the Mortgage Loan, and from time to advance monthly payments of principal and interest on time it (or the applicable Non-Lead Securitization Note pursuant Trustee, to the terms of extent provided in the related Non-Lead Servicing Agreement) if such principal or interest is not paid by (i) shall be required to make Servicing Advances with respect to the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereonLoan, subject to the terms of the Servicing Agreement and this Agreement, and (ii) may be required to make P&I Advances on the Lead Securitization Note, if and to the extent provided in the Servicing Agreement and this Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization Trustee, as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; howeverapplicable, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receivereimbursement for a Servicing Advance, and first from funds on deposit in the Master Servicer and Collection Account or Companion Distribution Account for the Special Servicer shall provide, Mortgage Loan that (in any information, relating to case) represent amounts received on or in respect of the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and then, in the possession ofcase of Nonrecoverable Servicing Advances, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth funds on deposit in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as Collection Account or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect Companion Distribution Account with respect to the Mortgage LoanLoan are insufficient, provided, however, that from general collections of the Servicer under Lead Securitization as provided in the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a and from each Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in placeNoteholder as provided below. The Master Servicer, the actual servicing of Special Servicer and the Mortgage Loan may Trustee, as applicable, will be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder entitled to reimbursement for Advance Interest Amounts on a Servicing Advance or a Nonrecoverable Servicing Advance, in the manner and does not have to be performed by from the service providers set forth under sources provided in the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and including from general collections of the Note B Holder agrees to reasonably negotiate Lead Securitization and, in the final terms case of such servicing agreement as promptly as reasonably possible upon receipt Servicing Advances, from general collections of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to as provided herein. To the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do soobtains funds from general collections of the Lead Securitization as a reimbursement for a Nonrecoverable Servicing Advance or any Advance Interest Amounts on a Servicing Advance or a Nonrecoverable Servicing Advance, and each Non-Lead Securitization Noteholder (including from general collections or any other amounts from the Non-Lead Master Servicer will Securitization Trust) shall be required to, promptly following notice from the Master Servicer, reimburse the Lead Securitization for its pro rata share of such Nonrecoverable Servicing Advance or Advance Interest Amounts (it being understood that the pro rata share payable by each Non-Lead Securitization Noteholder under this paragraph would be determined by allocating such Nonrecoverable Servicing Advance or Advance Interest Amount, as the case may be, first to the Junior Notes and then to the Senior Notes, in that order).
(c) A Non-Lead Master Servicer may be required to make P&I Advances on the related Non-Lead Securitization Note, from time to time, subject to the terms of the applicable Non-Lead Servicing Agreement, the Servicing Agreement and this Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to make their own recoverability determination with respect to a P&I Advance to be made on the Lead Securitization Note based on the information that they have on hand and in accordance with the Servicing Agreement. Each Non-Lead Master Servicer, Non-Lead Special Servicer and Non-Lead Trustee, as applicable, shall be entitled to make its own recoverability determination with respect to a P&I Advance to be made on the related Non-Lead Securitization Note based on the information that it has on hand and in accordance with the related Non-Lead Servicing Agreement. The Master Servicer and the Trustee, as applicable, and each Non-Lead Master Servicer and Non-Lead Trustee, as applicable, shall be required to notify the others of the amount of its P&I Advance within two (2) Business Days of making such advance. If the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account as applicable (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account () or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and Special Servicer or Non-Lead Trustee, as applicable (ii) notice of any subsequent change with respect to the related Non-Lead Securitization Note), determines that a proposed P&I Advance, if made, would be non-recoverable or an outstanding P&I Advance is or would be non-recoverable, or if the Master Servicer, the Special Servicer or the Trustee, as applicable, subsequently determines that a proposed P&I Advance would be non-recoverable or an outstanding P&I Advance is or would be non-recoverable, then the Master Servicer or the Trustee (as provided in the identity Servicing Agreement, in the case of a determination of non-recoverability by the Master Servicer, the Special Servicer or the Trustee) or the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement Lead Trustee (together with as provided in the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the related Non-Lead Servicing Agreement; and
(v) , in the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries case of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated a determination of non-recoverability by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a such Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.Master
Appears in 2 contracts
Samples: Agreement Among Noteholders (Wells Fargo Commercial Mortgage Trust 2017-Rb1), Agreement Among Noteholders (BBCMS Mortgage Trust 2017-C1)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements Date, as directed by described in the Note A-1-1 Holder definition of the Servicing Agreement and from and after the Securitization Date (except as otherwise set forth in Section 5(b2(f)), pursuant to the Lead Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest make P&I Advances in respect of the Notes other than the Notes included in the Lead Securitization Note (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable related Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Securitization Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower Borrower, but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereonmake Servicing Advances, subject to the terms of the Lead Securitization Servicing AgreementAgreement including any provisions governing the determination of non-recoverability. The Note B Holder Each Junior Noteholder acknowledges that each any Senior Note Holder Noteholder may elect, in its sole discretion, to include the related Senior Note its respective Note, or any portion thereof, in a Securitization one or more Securitizations and agrees that it will, subject to Section 2423, reasonably cooperate with such Holderthe applicable Senior Noteholder, at such Senior Note HolderNoteholder’s sole cost and expense, to effect any such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, the Special Servicer Servicer, the Trustee, any Certificate Administrator, the Asset Representations Reviewer and the Trustee any Securitization Operating Advisor under the Lead Securitization Servicing Agreement by the applicable Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer (and such other parties) with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Lead Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the such Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; provided, however, that this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder. Each Servicer shall be required pursuant to the Servicing Agreement to service the Mortgage Loan in accordance with the Servicing Standard, the terms of the Mortgage Loan Documents, this Agreement, the Servicing Agreement and applicable law, shall provide information to each Non-Lead Servicer to enable such Non-Lead Servicer to perform its servicing duties under the related Non-Lead Securitization Servicing Agreement and shall not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.
(b) In no event shall the Note B Holder any Junior Noteholder be entitled to exercise any rights of the “directing holder” consulting ”, controlling class or any analogous class or holder under the Lead Securitization Servicing Agreement except to the extent the Note B Holder such Junior Noteholder is given such rights expressly under the terms of this Agreement or the Lead Securitization Servicing Agreement in its capacity as the Controlling Noteholder.
(c) The Lead Securitization Servicing Agreement shall, unless otherwise agreed to by the Controlling Noteholder, contain (i) servicing and reporting provisions (including Asset Status Reports for all Major Decisions) substantially similar in all material respects to the servicing provisions of the Model PSA and (ii) a Servicing Standard substantially similar in all material respects to the servicing standard in the Model PSA. In no event may the Lead Securitization Servicing Agreement change the interest or principal allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder Junior Noteholders or materially increase the Controlling Noteholder’s Junior Noteholders’ obligations or materially decrease the Controlling Noteholder’s Junior Noteholders’ rights, remedies or protections hereunder or otherwise adversely affect hereunder. The Lead Securitization Servicing Agreement shall require the Controlling Noteholder’s Master Servicer and the Special Servicer to service the Mortgage Loan in accordance with the terms of this Agreement, including the rights of the Junior Noteholders hereunder.
(d) The Lead Securitization Servicing Agreement shall contain provisions to the effect that:
(i) if a Servicer Termination Event under the Lead Securitization Servicing Agreement has occurred (A) with respect to the Master Servicer under the Lead Securitization Servicing Agreement that affects a Noteholder or any class of commercial mortgage securities backed by a Note or a participation interest in a Note, and the Master Servicer is not otherwise terminated under the Lead Securitization Servicing Agreement, then the Note B-1 Holder or its designees (if the Note B-1 Holder is the Controlling Holder), together with any affected Non-Lead Securitization Noteholder, shall be entitled to direct the Trustee to appoint a sub-servicer solely with respect to the Mortgage Loan (or if the Mortgage Loan is currently being sub-serviced, to replace the current sub-servicer, but only if such original sub-servicer is in default under the related sub-servicing agreement); and (B) the appointment (or replacement) of a sub-servicer with respect to the Mortgage Loan, as contemplated in clause (A) above, will in any event be subject to Rating Agency Confirmation in connection with any Securitization;
(ii) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders in accordance with Section 3 and Section 4 hereof on the “master servicer remittance date” under the Lead Securitization Servicing Agreement;
(iiiii) the Note B Holder Noteholders shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or the Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Securitization Servicing Agreement Trust that includes any Non-Lead Securitization Note (including, but not limited to, standard CREFC reports); provided that, notwithstanding anything to standard CREFC® reportsthe contrary contained in this Agreement, provided that if an interest in any Junior Note B or the Note B Holder any Junior Noteholder is held by the Mortgage Loan Borrower or a any Mortgage Loan Borrower Related Party, then the Note B Holder no Junior Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreementstrategy;
(iiiiv) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and may directly enforce such rights; and
(ivv) the Lead Securitization Servicing Agreement may not be amended without the consent of the Note B Holder other Noteholders if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holderother Noteholder’s rights with respect theretoto the Mortgaged Loan (as reasonably determined by the other Noteholders) thereunder.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) Noteholders agree to cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable substantially similar to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Lead Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Lead Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a any Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating AgencyAgency with respect to such Securitization; provided, further, however, that until a replacement servicing agreement has been entered into, the Lead Securitization Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Lead Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer Approved Servicer appointed by Note A-1-1 Holder the Lead Securitization Noteholder and does not have to be performed by the service providers set forth under the Lead Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 2 contracts
Samples: Agreement Among Noteholders (UBS Commercial Mortgage Trust 2018-C12), Agreement Among Noteholders (UBS Commercial Mortgage Trust 2018-C11)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement and in accordance with this Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes that are not included in the Lead Securitization (and each the Non-Lead Master Servicer shall not be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms in respect of the related Non-Notes that are not included in the Lead Servicing AgreementSecuritization) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note A-B Holder acknowledges that each a Senior Note Holder Noteholder may elect, in its sole discretion, to include the related its Senior Note in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such HolderSenior Noteholder, at such Senior Note HolderNoteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, the Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with and consent with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this the Servicing Agreement and the Securitization Servicing this Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer be required to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder.
(b) In no event The Controlling Noteholder (or any Controlling Noteholder Representative appointed by it acting on its behalf) shall exercise the Note B Holder be entitled rights and powers granted to exercise any rights of the “directing holderControlling Holder”, “Directing Certificateholder” consulting class or any analogous class “Directing Holder” (or holder similar term) under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as with respect to the Controlling NoteholderMortgage Loan.
(c) The Servicing Agreement shall contain the Servicing Standard (which shall require, among other things, that each Servicer, in servicing the Mortgage Loan, must take into account the interests of each Noteholder, taking into account that Note A-B is junior to the Senior Notes). In no event may the Securitization Servicing Agreement change the interest or principal allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 A-B Holder or materially increase the Controlling NoteholderNote A-B Holder’s obligations or materially decrease the Controlling NoteholderNote A-B Holder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders in accordance with Sections 3 and 4 hereof on the “master servicer remittance date” under the Securitization Servicing AgreementMaster Servicer Remittance Date;
(ii) the Note A-B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person the Note A-B Holder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Securitization Servicing Agreement Trust that includes other Notes, including, but not limited to standard CREFC® reports, provided subject to limitations or information that if an interest in may be made available to a Note B or the Note A-B Holder that is held by the a Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note A-B Holder (not to be unreasonably withheld) if such amendment would materially and adversely affect the Mortgage Loan or the Note A-B Holder’s rights with respect thereto;
(v) the Servicing Agreement shall contain the provisions set forth on Schedule I;
(vi) provide that any inconsistency between the Servicing Agreement and this Agreement shall be governed by and determined in accordance with the terms of this Agreement; and
(vii) recognize the respective rights and obligations of the Noteholders hereunder, including with respect to the making of payment to the Noteholders and the rights of the Noteholders to approve matters and make decisions hereunder.
(e) Notwithstanding anything to the contrary contained in this Agreement, any Any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Lead Senior Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder Lead Senior Noteholder shall (i) cause the Mortgage Loan to be serviced pursuant to a replacement servicing agreement mutually agreeable to the Non-Lead Senior Noteholder and the Note A-B Holder that contains servicing provisions which are the same as or more favorable to the NonNote A-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent replacement servicing agreement; provided, however, that (1) if the Non-Lead Senior Note is in a Securitization, then Rating Agency Confirmation shall have been obtained from each Rating Agency with respect to such subsequent servicing agreement and (2) until a replacement servicing agreement has been entered into, (x) the Note A-1-1 Holder Lead Senior Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, Loan and (y) the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by the Lead Senior Noteholder with the consent of the Note A-1A-1 B Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder Lead Senior Noteholder shall provide the NonNote A-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreementservicing agreement, and the Note B Holder X-X Xxxxxx agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) . If the Note A-B Holder exercises its purchase option in accordance with Section 12 the terms hereof, upon the Mortgage Loan being transferred to the Note A-B Holder, the Note A-B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(g) Upon the occurrence of the Lead Securitization, the Lead Senior Noteholder shall give each other Noteholders (and the applicable servicer and trustee, if any other Note is in a Securitization) notice of the Lead Securitization in writing (which may be by e-mail) prior to or promptly following the related Securitization Date. Such notice shall contain contact information for each of the parties to the related Servicing Agreement and the identity of the controlling class representative under such Servicing Agreement. In addition, after the closing of the Lead Securitization, Lead Senior Noteholder shall send a copy of the related Servicing Agreement to each of the other holders.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under contain the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisionsprovisions set forth in Schedule II.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 2 contracts
Samples: Co Lender Agreement (BMO 2023-C4 Mortgage Trust), Co Lender Agreement (BBCMS Mortgage Trust 2022-C18)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by pursuant to the Note A-1-1 Holder Interim Servicing Agreement and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization Note A-1 (and each the Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note A-2 pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior of the Note A-1 Holder and the Note A-2 Holder may elect, in its sole discretion, to include the related Senior Note A-1 and/or Note A-2 in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such the Note A-1 Holder and the Note A-2 Holder, at such Senior the Note A-1 Holder’s and the Note A-2 Holder’s, as applicable, sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) The Securitization Servicing Agreement shall, unless otherwise agreed to by the Note B Holder, contain (i) servicing and reporting provisions (including the Asset Status Report for all Major Decisions) substantially similar in all material respects to the servicing provisions of the Model PSA and (ii) a Servicing Standard substantially similar in all material respects to the servicing standard in the Model PSA. In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 B Holder or materially increase the Note B Holder’s or the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s or the Note B Holder’s rights, remedies or protections hereunder or otherwise adversely affect hereunder. The Securitization Servicing Agreement shall require the Controlling Noteholder’s Master Servicer and Special Servicer to service the Mortgage Loan in accordance with the terms of this Agreement, including the rights of the Note B Holder hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 A-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 A-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders A-2 Holder and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 A-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a the Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 A-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 A-1 Holder shall provide the Non-Controlling Note Holders A-2 Holder and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each The Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes Note A-1 and Note A-2 will be allocated by the Master Servicer between the Senior NotesNote A-1 and Note A-2, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a the Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 2 contracts
Samples: Agreement Between Noteholders (CSAIL 2016-C6 Commercial Mortgage Trust), Agreement Between Noteholders (JPMDB Commercial Mortgage Securities Trust 2016-C2)
Servicing. (a) Each Noteholder acknowledges Pursuant to Section 2, the parties hereto hereby authorize each Company, in its roles as a Receivables Sub-Servicer and as a Securitization Property Servicer, and such Company in such capacities hereby agrees thatto, subject allocate and remit funds received from the corresponding Customers for the benefit of the Receivables Buyer, the Receivables Administrative Agent and the Receivables Purchasers, and the applicable Bond Issuer, the applicable Indenture Trustee and the corresponding bondholders, respectively, and control the movement of such funds out of the Deposit Accounts in each case to accordance with the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no the event shall the Note B Holder be that an Indenture Trustee is entitled to and desires to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable toright, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special applicable Bond Agreements, to replace a Company as Securitization Property Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received Receivables Purchasers are entitled to and desire to exercise their right to replace a Company as a Receivables Sub-Servicer, the party desiring to exercise such right shall promptly give written notice to the other in accordance with the notice provisions of this Agreement and consult with the other with respect to each respective Note are insufficient any replacement of a Company in any such capacity to cover such Servicing Advances or additional trust fund expenses, (A) reach mutually satisfactory replacement. Any entity named as the Nonapplicable replacement Receivables Sub-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or Securitization Property Servicer in accordance with this Section 4 is referred to herein as a “Replacement Servicer.”
(c) Anything in this Agreement to the Special Servicercontrary notwithstanding, pay any action taken by an Indenture Trustee or reimburse the Master ServicerReceivables Administrative Agent to appoint a Replacement Servicer pursuant to this Section 4 shall be subject to the Rating Agency Condition and the consent, if required by law, of the applicable “Commission” designated as such in an Effective Joinder. For the purposes of this Agreement, the Special Servicer, “Rating Agency Condition” has the Certificate Administrator, meaning set forth in the Trustee, applicable Indenture. The parties hereto acknowledge and agree that the approval or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration consent of the Mortgage Loan and rating agencies which is required in order to satisfy the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee Rating Agency Condition is not subject to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do soany standard of commercial reasonableness, and the Non-Lead Master Servicer will be required to, promptly following notice from parties are bound to satisfy this condition whether or not the Master Servicer, the Special Servicer rating agencies are unreasonable or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisionsarbitrary.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 2 contracts
Samples: Intercreditor Agreement (SWEPCO Storm Recovery Funding LLC), Intercreditor Agreement (SWEPCO Storm Recovery Funding LLC)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced pursuant to this Agreement and (i) prior to the Lead Securitization Date Date, under interim servicing arrangements as directed by the Note A-1-1 A Holder and from and (ii) after the Lead Securitization Date (except as otherwise set forth in Section 5(b))Date, pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing AgreementAgreement (including a determination of recoverability thereunder). The Note B Holder Each Noteholder acknowledges that each Senior another Noteholder (including, in particular, the Note Holder A Holder) may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such Holderother Noteholder, at such Senior Note Holderother Noteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Trustee under the Securitization Servicing Agreement by the Depositor, and the appointment of the Special Servicer as the initial Special Servicer under the Servicing Agreement by the Depositor (subject to replacement by the Controlling Noteholder as provided herein) and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder Noteholders set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the any Servicer to enforce the rights of any Noteholder against any other Noteholder or limit the any Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder. Each Servicer shall be required pursuant to the Servicing Agreement to service the Mortgage Loan in accordance with the Servicing Standard, the terms of the Mortgage Loan Documents, the Servicing Agreement and applicable law, and shall not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” ”, controlling or consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder, and in no event may any such “directing holder”, controlling or consulting class or analogous class or holder under the Servicing Agreement have any of the rights of the Controlling Noteholder hereunder except during a Control Appraisal Period.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 B Holder or materially increase the Controlling NoteholderNote B Holder’s obligations or materially decrease the Controlling NoteholderNote B Holder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling NoteholderNote B Holder’s rights hereunder. The Master Servicer shall be the lead master servicer on the Mortgage Loan, and from time to time it (or the Trustee, to the extent provided in the Lead Securitization Servicing Agreement) (i) shall be required to make Property Protection Advances with respect to the Mortgage Loan, subject to the terms of the Lead Securitization Servicing Agreement and this Agreement, and (ii) may be required to make P&I Advances on the Lead Securitization Note, if and to the extent provided in the Lead Securitization Servicing Agreement and this Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, will be entitled to reimbursement for a Property Protection Advance, first from funds on deposit in each of the Collection Account and the Companion Distribution Account that (in any case) represent amounts received on or in respect of the Mortgage Loan in the manner provided in the Lead Securitization Servicing Agreement, and then, in the case of Nonrecoverable Property Protection Advances, if such funds on deposit in the Collection Account and Companion Distribution Account are insufficient, from general collections of the Lead Securitization as provided in the Lead Securitization Servicing Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, will be entitled to reimbursement for Advance Interest Amounts on a Property Protection Advance or a Nonrecoverable Property Protection Advance, in the manner and from the sources provided in the Lead Securitization Servicing Agreement, including from general collections of the Lead Securitization. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to make their own recoverability determination with respect to a P&I Advance to be made on the Lead Securitization Note based on the information that they have on hand and in accordance with the Lead Securitization Servicing Agreement.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:that (and to the extent such following provisions are not included in the Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provideprovide access to, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person the Note B Holder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or the Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Lead Securitization Servicing Agreement Trust but not limited to standard CREFC® reportsreports and Asset Status Reports, provided that if an interest in Note B or the Note B Holder or Note B is held by the Mortgage Loan a Borrower or a Mortgage Loan Borrower Related PartyParty Affiliate, then the Note B Holder such requesting Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Informationexcluded information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would be materially and adverse to the Note B Holder or would materially adversely affect the Mortgage Loan or the Note B Holder’s rights with respect theretothereto or would alter any term that is defined herein by reference to the Servicing Agreement in a manner that is materially adverse to the Note B Holder;
(v) the Special Servicer selected by the Controlling Noteholder shall be named as the Special Servicer for the Mortgage Loan by the closing of the Note A Securitization; provided, however, that such Special Servicer has the Required Special Servicer Rating of, or otherwise be acceptable to, each of the Rating Agencies rating the Lead Securitization;
(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 Noteholders in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard; and
(vii) any conflict between the Lead Securitization Servicing Agreement and this Agreement shall be resolved in favor of this Agreement.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Lead Securitization Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder Lead Securitization Noteholder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, , that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder Lead Securitization Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, ; provided, however, that the Servicer under the Securitization such replacement Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agencyadvance monthly payments of principal and interest; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer meeting the requirements of the Servicing Agreement appointed by Note A-1-1 Holder the Lead Securitization Noteholder and the special servicer appointed by the Controlling Noteholder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If Subject to the Note B Holder exercises its purchase option Servicer’s obligation to act in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in Standard and subject to a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the NotesRating Agency Confirmation, and that solely in the event that S&P rates any securities issued in connection with the funds received Note A Securitization, the Servicer shall require the Mortgage Loan Borrower to maintain insurance with an insurer meeting the minimum S&P ratings requirements specified in the related Mortgage Loan Documents (and, for the avoidance of doubt, without regard to any Lender discretion with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds ratings in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged PropertyDocuments), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 2 contracts
Samples: Agreement Between Noteholders (COMM 2018-Cor3 Mortgage Trust), Agreement Between Noteholders (COMM 2018-Cor3 Mortgage Trust)
Servicing. (a) Each Noteholder acknowledges Pursuant to Section 2, the Company, in its role as collection agent hereunder, shall allocate and agrees thatremit funds received from Customers for the benefit of the Initial Bond Issuer, subject the Initial Bond Trustee, the Additional Bond Issuer and the Additional Bond Trustee, respectively, and shall control the movement of such funds out of the Deposit Accounts in each case to accordance with the terms of this Agreement. To the extent permitted under the Initial Indenture or the Additional Indenture, the Mortgage Loan shall Company may appoint a successor servicer or sub-servicer to act in any of its respective capacities under this Agreement so long as such successor servicer or sub-servicer has executed joinder documentation agreeing to act in such capacity and to be serviced prior to the Securitization Date under interim servicing arrangements as directed bound by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no the event shall that the Note B Holder be Initial Bond Trustee is entitled to and desires to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable toright, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by Initial Bond Agreements, to replace the Master Company as Initial Property Servicer, or in the event that the Additional Bond Trustee is entitled to and desires to exercise its right, pursuant to the Additional Bond Agreements, to replace the Company as Additional Property Servicer, , and therefore to terminate the role of the Company as the Initial Property Servicer or as the Special Additional Property Servicer, as applicable, hereunder, the party desiring to exercise such right shall promptly give written notice to the other parties hereto (the “Servicer Notice”) in accordance with the notice provisions of this Agreement and consult with the other parties with respect to the person or entity (“Person”) who would replace the Company in its capacity as set forth Initial Property Servicer or as Additional Property Servicer. Any successor to the Company in any of such capacities shall be agreed to by the Servicing Agreement.
Initial Bond Trustee and the Additional Bond Trustee within ten (f10) At any time after Business Days of the Securitization Date that date of the Note A-1-1 is no longer Servicer Notice, and such successor shall be subject to satisfaction of the Initial Bonds Rating Agency Condition (as defined below) and the Additional Bonds Rating Agency Condition (as defined below) and otherwise satisfy the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Initial Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Additional Servicing Agreement. The Note A-1-1 Holder shall provide For the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreementavoidance of doubt, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration removal of the Notes and Company as the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to Initial Property Servicer shall not automatically cause the Notes, and that in removal of the event that Company as the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Additional Property Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) each the removal of the Indemnified Parties Company as the Additional Property Servicer shall be indemnified (as and to not automatically cause 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 Servicing Agreement and, in the case removal of the Lead Securitization Trust, to Company as the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified ItemsInitial Property Servicer, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master roles of Initial Property Servicer and Additional Property Servicer may be held by different Persons so long as each such Person has agreed to be bound by the Operating Advisor provisions of this Agreement. “Business Day” means any day other than a Saturday, Sunday, or any holiday for national banks or any New York banking corporation in Detroit, Michigan, New York, New York or the city in which The Depository Trust Company or the Corporate Trust Office (i) promptly following as defined in the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer Initial Indenture and the party designated Additional Indenture) is located. Any Person named as replacement collection agent in accordance with this Section 4 is referred to exercise herein as a “Replacement Collection Agent.” The parties hereto agree that any entity succeeding to the rights of the “Non-Controlling Note Holder” under Company in its capacity as Initial Property Servicer or Additional Property Servicer hereunder shall execute customary joinder documentation agreeing to act in such capacity and to be bound by the terms of this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 2 contracts
Samples: Intercreditor Agreement (DTE Electric Securitization Funding II LLC), Intercreditor Agreement (DTE Electric Securitization Funding II LLC)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to this Agreement and the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included for any Note in the Lead Securitization (and each a Non-Lead Master Servicer shall may be required to advance monthly payments of principal and interest on the applicable a Non-Lead Securitization Note included in a Non-Lead Securitization pursuant to the terms of the related Non-Lead Securitization Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing AgreementAgreement (including a determination of recoverability thereunder). The Note B Holder Each Noteholder acknowledges that each Senior Note Holder Initial Noteholder (if it is not already the trustee for a Securitization Trust) may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such Holderother Noteholder, at such Senior Note Holderother Noteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer the Certificate Administrator, any Operating Advisor, any Asset Representations Reviewer and the Trustee under the Securitization Servicing Agreement by the Depositor, and the appointment of the Special Servicer as the initial Special Servicer under the Servicing Agreement by the Depositor (subject to replacement by the Controlling Noteholder as provided herein) and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder Noteholders set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the any Servicer to enforce the rights of any Noteholder against any other Noteholder or limit the any Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder. Each Servicer shall be required pursuant to the Servicing Agreement to service the Mortgage Loan in accordance with the Accepted Servicing Practices, this Agreement, the terms of the Mortgage Loan Documents, the Servicing Agreement, any intercreditor agreement and applicable law, and shall not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.
(b) In no event No Noteholder shall the Note B Holder be entitled to exercise any rights of the “directing holder”, “consenting or consulting party”, “controlling or consulting class,” consulting “controlling class representative” or any analogous class or holder of Certificates (as defined in the Lead Securitization Servicing Agreement) under the Securitization Servicing Agreement except except, in the case of the Controlling Noteholder, to the extent the Note B Holder such holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder, and in no event may any such “directing holder”, “consenting or consulting party”, controlling, consenting or consulting class or analogous class or holder of certificates backed solely by B Note under the Servicing Agreement have any of the rights of the Controlling Noteholder hereunder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan Master Servicer shall be paid by the Master Servicer to each of the other Noteholders on the “lead master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to on the Mortgage Loan, the Mortgage Loan Borrower and from time to time it (or the Mortgaged Property as such Person may reasonably request and Trustee, to the extent provided in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Lead Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan shall be required to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect make Property Protection Advances with respect to the Mortgage Loan, provided, however, that subject to the Servicer under terms of the Lead Securitization Servicing Agreement shall have no further obligations and this Agreement, and (ii) may be required to make P&I Advances; providedprincipal and interest Advances on any Note in the Lead Securitization, further, however, that if a Non-and to the extent provided in the Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder Servicing Agreement and does not have to be performed by the service providers set forth under the Securitization Servicing this Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder Master Servicer or Trustee shall be entitled required to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect provide written notice to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer and each Non-Lead Trustee of any principal and interest Advance it has made with respect to the Lead Securitization Note within two (2) Business Days of making such Advance. The Master Servicer, the Special Servicer and the Trustee, as applicable, will be required toentitled to reimbursement for a Property Protection Advance, promptly following notice first from funds on deposit in each of the Collection Account and the Companion Distribution Account that (in any case) represent amounts received on or in respect of the Mortgage Loan in the manner provided in the Lead Securitization Servicing Agreement, and then, if such Property Protection Advance is a Nonrecoverable Advance, and if such funds on deposit in the Collection Account and Companion Distribution Account are insufficient, from general collections of the Lead Securitization as provided in the Lead Securitization Servicing Agreement and from general collections of each Non-Lead Securitization as provided below. The Master Servicer, the Special Servicer and the Trustee, as applicable, will be entitled to reimbursement for Advance Interest Amounts on a Property Protection Advance, in the manner and from the Master Servicer or sources provided in the Special ServicerLead Securitization Servicing Agreement, pay or reimburse including from general collections of the Lead Securitization and, in the case of Property Protection Advances that are Nonrecoverable Advances, from general collections of each Non-Lead Securitization as provided below. Notwithstanding the foregoing, to the extent the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do soobtains funds from general collections of the Lead Securitization unrelated to the Mortgage Loan or the Property as a reimbursement for a Property Protection Advance that is a Nonrecoverable Advance or any Advance Interest Amounts on such a Nonrecoverable Advance, and the Non-Lead Master Servicer will Securitization Noteholder (including from general collections or any other amounts from the Non-Lead Securitization Trust) shall be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.Nonrecoverable Advance or
Appears in 2 contracts
Samples: Agreement Between Noteholders (BBCMS Mortgage Trust 2022-C15), Agreement Between Noteholders (Morgan Stanley Capital I Trust 2022-L8)
Servicing. (a) Each Noteholder acknowledges and agrees thatThe Issuer shall cause all Mortgage Assets to be serviced by the Servicer (or a replacement Servicer reasonably acceptable to the Majority of the Controlling Class) in accordance with the Servicing Agreement (or a replacement Servicing Agreement reasonably acceptable to the Majority of the Controlling Class), subject in each case to in accordance with the terms Servicing Standard. The Issuer shall obtain the written consent of this Agreement, the Mortgage Loan shall be serviced Majority of the Controlling Class prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master appointing any replacement Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal entering into or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization amending or modifying any Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing Mortgage Assets with a Servicer, which consent shall not be unreasonably withheld, conditioned or delayed. Upon the occurrence and continuance of an Event of Default, the Majority of the Mortgage Loan in accordance with this Agreement and Controlling Class shall have the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints right to terminate the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the appoint a replacement Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan Assets. In connection with the foregoing, the Issuer, the Trustee and the Collateral Agent shall reasonably cooperate with the Controlling Class in effecting such replacement and termination.
(b) Subject to the Mortgage Asset Documents, the terms of the Servicing Agreement and the Servicing Standard, the Servicer shall have full power and authority, acting alone and/or through one or more Affiliates, vendors or other third parties for the performance of incidental services of the Servicer hereunder, such as performing inspections or monitoring insurance and/or taxes; provided that the Servicer shall remain obligated and liable to the Issuer for the servicing and administering of the Mortgage Assets in accordance with the provisions of the Servicing Standard Agreement hereof without diminution of such obligation or liability by virtue of such contract. The Servicer shall be obligated to pay all fees and expenses of any Affiliates, vendors or other third parties to which it has delegated or subcontracted any of its duties under the Servicing Agreement out of its Servicing Fee.
(a) The Servicer may, at no cost to Issuer, enter into sub-servicing agreements with sub-servicers (so long as set forth in such sub-servicer is a Qualified Servicer and, so long as the Securitization Servicing AgreementClass A Loan is Outstanding, a Majority of the Holders of the Class A Loan approve such sub-servicer and sub-servicing agreement), to do or cause to be done any and all references herein things in connection with such servicing and administration that it may deem, in its reasonable judgment, necessary or desirable; provided that the Servicer shall remain obligated and liable to the “Securitization Servicing Agreement” shall mean such subsequent Issuer for the servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause and administering of the Mortgage Loan to be serviced Assets in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment diminution of any termination fees.
(h) Each Nonsuch obligation or liability by virtue of such sub-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) each of the Indemnified Parties shall be indemnified (as agreement and to the same extent and under the Lead Securitization Trust is required to indemnify each of such Indemnified Parties same terms and conditions as if the Servicer alone were servicing and administering the Mortgage Assets. References in respect of other mortgage loans in this Indenture and Credit Agreement and the Lead Securitization Trust pursuant to the terms of related Servicing Agreement and, to actions taken or to be taken by the Servicer in servicing the case Mortgage Assets include actions taken or to be taken by a sub-servicer on behalf of the Lead Securitization Trust, to the extent Servicer. For purposes of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, this Indenture and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amountsCredit Agreement, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect deemed to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit have received any compensating interest payment in respect of a NonMortgage Asset when the applicable or related sub-Lead Securitization Note servicer receives such payment. The Servicer shall be obligated to pay all fees and expenses of any sub-servicer out of its Servicing Fee. Any sub-servicing agreement entered into by Servicer (or a side letter agreement entered into by the Servicer, the applicable sub-servicer, the Issuer and the Class A Lender (for so long as the Class A Loan is Outstanding)) shall (x) conform to the related Non-Lead Securitization Note Holderprovisions in this Section 17.1, (y) provide that it shall terminate automatically upon the termination of the Servicer and (z) terminate, at the option of a Majority of the Controlling Class, upon the occurrence and continuance of an Event of Default hereunder.
(jb) In The Issuer and the event any filing is required Class A Lender hereby approve the Servicing Agreement. Except as otherwise expressly provided herein, the Issuer shall not cause or permit the Servicing Agreement to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, modified or supplemented without the related Non-Lead Securitization Note Holder (including consent of a Majority of the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filingHolders of the Controlling Class.
Appears in 2 contracts
Samples: Indenture and Credit Agreement (Terra Property Trust, Inc.), Indenture and Credit Agreement (Terra Secured Income Fund 5, LLC)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by pursuant to the Note A-1-1 Holder Interim Servicing Agreement and from and after the Securitization Date (except as otherwise set forth in Section 5(b2(e)), pursuant to the Securitization Servicing Agreement, in each case, in accordance with this Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization Senior Note (and each the Non-Lead Master Servicer shall not be required to advance monthly payments of principal and interest on in respect of the applicable Notes other than the Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing AgreementSenior Note) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. A Senior Noteholder may not amend or modify the Interim Servicing Agreement in any manner that materially and adversely increases the Junior Noteholder’s obligations or decreases Junior Holder’s rights without the prior written consent of Junior Noteholder in its sole and absolute discretion. The Note B Holder Junior Noteholder acknowledges that each a Senior Note Holder Noteholder may elect, in its sole discretion, to include the related its applicable Senior Note in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such HolderSenior Noteholder, at such Senior Note HolderNoteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, including, without limitation Section 2(c), each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Lead Depositor and agrees to reasonably cooperate with and consent with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement and this Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder.
(b) In no event The Controlling Noteholder (or any Junior Operating Advisor appointed by it acting on its behalf) shall exercise the Note B Holder be entitled rights and powers granted to exercise any rights of the “directing holderControlling Holder”, “Directing Certificateholder” consulting class or any analogous class “Directing Holder” (or holder similar term) under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as with respect to the Controlling NoteholderMortgage Loan.
(c) The Securitization Servicing Agreement shall contain the Servicing Standard. In no event may the Securitization Servicing Agreement change the interest or principal allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder Junior Noteholder or materially increase the Controlling Junior Noteholder’s obligations or materially decrease the Controlling Junior Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders in accordance with Sections 3 and 4 hereof on the “master servicer remittance date” under the Securitization Servicing AgreementMaster Servicer Remittance Date;
(ii) the Note B Holder Junior Noteholder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower borrower or the Mortgaged Property as such Person the Junior Noteholder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Securitization Servicing Agreement Trust that includes other Notes but not limited to standard CREFC® reports, provided that if an interest in the Junior Note B or the Note B Holder Junior Noteholder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder Junior Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder Junior Noteholder if such amendment would materially and adversely affect the Mortgage Loan or the Note B HolderJunior Noteholder’s rights with respect theretothereto (as determined by the Junior Noteholder);
(v) the Securitization Servicing Agreement shall contain, the additional provisions set forth on Schedule I;
(vi) provide that any inconsistency between the Securitization Servicing Agreement and this Agreement shall be governed by and determined in accordance with the terms of the Agreement;
(vii) recognize the respective rights and obligations of the Noteholders hereunder, including with respect to the making of payment to the Noteholders and the rights of the Noteholders to approve matters and make decisions hereunder; and
(viii) require that the Servicer comply with the terms hereof and perform all obligations contemplated hereby to be performed by a Servicer.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Lead Senior Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder Lead Senior Noteholder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement mutually agreeable to the Senior Noteholders and the Junior Noteholder that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B HolderJunior Noteholder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that if a Non-Lead Senior Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency with respect to such subsequent servicing agreement; provided, further, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder Lead Senior Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder the Lead Senior Noteholder with the consent of the Junior Noteholder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If Upon the occurrence of the Note B Holder exercises its purchase option A-1 Securitization, the Lead Senior Noteholder shall give each other holder (and the applicable servicer and trustee, if any other Note is in accordance with Section 12 hereof, upon a Securitization) notice of the Mortgage Loan being transferred Lead Securitization in writing (which may be by e-mail) prior to or promptly following the related Securitization Date. Such notice shall contain contact information for each of the parties to the related Securitization Servicing Agreement and the identity of the controlling class representative under such Securitization Servicing Agreement. In addition, after the closing of the Note B HolderA-1 Securitization, the Note B Holder related Lead Senior Noteholder shall be entitled to terminate send a copy of the related Securitization Servicing Agreement in its sole discretion without payment to each of any termination feesthe other holders.
(h) Each The Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under contain the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisionsprovisions set forth in Schedule II.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 2 contracts
Samples: Co Lender Agreement (CSAIL 2017-Cx9 Commercial Mortgage Trust), Co Lender Agreement (UBS Commercial Mortgage Trust 2017-C3)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan The Servicing Policy shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth functions and services that Purchaser shall perform in Section 5(b)), pursuant order to achieve results substantially similar to those results set forth on Exhibits E and L.
(b) Purchaser shall assign such trained personnel as are necessary or appropriate for servicing the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (Accounts and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan Financial Products accounts in accordance with this Agreement Section 5.6, and shall dedicate a majority of all customer service and Store relations personnel to the exclusive servicing of the Program (but all excluded from Sears competitors) and house such personnel in segregated space and/or facilities. These personnel shall be trained to work collaboratively with Sears, including Sears in-Store employees. Purchaser shall have a dedicated management organization and leadership structure specifically designed to support the Program, and Purchaser shall provide dedicated personnel resources in the areas of finance, marketing, risk, decision management and overall Program management, in each case as Purchaser deems reasonably necessary. Purchaser shall maintain adequate computer and communications systems and other equipment and facilities necessary or appropriate for servicing the Accounts and Financial Products accounts in accordance therewith. Without limiting Section 14.8(c), Purchaser shall not outsource any customer service or Store relations personnel to a third party located outside North America without Sears’ prior written consent.
(c) Purchaser shall maintain a disaster recovery plan, which shall be tested regularly by Purchaser, as well as systems, equipment, facilities and trained personnel, that shall enable it to service the Accounts and Financial Products continuously through a disaster. Sears shall have the right to review, upon request, a current copy of Purchaser’s disaster recovery plan and the Securitization Servicing Agreementresults of Purchaser’s tests of such plan. Sears acknowledges and agrees that Purchaser may make changes to its disaster recovery plan from time to time without Sears’ consent; provided, that such changes do not materially decrease the level of protection offered by the disaster recovery plan. Purchaser shall permit Sears to review any updated, revised, amended or restated disaster recovery plan as soon as it becomes available. If Sears identifies a potential disaster that Purchaser’s disaster recovery plan does not reasonably anticipate, such potential disaster shall be considered by the Program Committee and, if applicable, the Program Committee shall recommend an appropriate course of action. The performance of such tests and the resolution of any issues or problems identified in such test shall be performed at the sole discretion (as to timing) and expense of Purchaser. Each Noteholder hereby irrevocably appoints of Sears and Purchaser shall maintain information security policies and procedures that include administrative, technical and physical safeguards designed to (i) ensure the Master Servicersecurity and confidentiality of Confidential Information; (ii) protect against anticipated threats or hazards to the security or integrity of such Confidential Information; and (iii) protect against unauthorized access to, or use of, such Confidential Information.
(d) Purchaser shall, at its expense, provide appropriate mechanisms for both pre-approved and non-pre-screened application processing at the Special Servicer point of sale for Sears Customers. Sears shall provide to Purchaser such cooperation and assistance as Purchaser may reasonably require for the Trustee provision of such mechanisms. All Store signage and communications, including design and placement thereof, shall become property of and shall be controlled by Sears, subject to reasonable direction of Purchaser; provided, that Purchaser shall have the right to make any determination it deems necessary to comply with applicable Law, and Sears shall abide by such determination. The level of funding of Store signage and communications relating to the Program shall initially be consistent with Sears’ current practices, and thereafter subject to the Marketing Plan.
(e) Each party shall be responsible for regular costs arising out of or in connection with training its employees for purposes of the Program. Sears shall incorporate ongoing training in connection with the Program (the content of which will be developed under the guidance of the Program Committee), substantially in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required manner, terms and frequency currently being provided with respect to the administration Sears employees. If and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under that any action of a party in accordance with the terms of this Agreement requires or results in the Servicing Agreement other party incurring or being required to incur significant training costs (other than due to changes in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due toapplicable Law), the Note B-1 Holder or Note B-2 Holder or materially increase parties, working through the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rightsProgram Committee, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each reach a mutually agreeable allocation of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreementtraining costs.
(f) At any time Purchaser shall use reasonable best efforts to create a seamless continuation, after the Securitization Date that the Note A-1-1 is no longer subject Effective Date, of Sears’ Internet sites related to the provisions of Sears Credit Cards (e.g., sxxxxxxxx.xxx) or successor sites, so as to permit Cardholders and Financial Products Customers to obtain current Account activity and to use the Securitization Servicing Agreement, other features currently being provided to Cardholders and Financial Products Customers on Sears’ Internet sites. Sears shall continue to operate and design the Note A-1-1 Holder sxxxx.xxx Internet site and shall (i) cause provide a link on the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable sxxxx.xxx site to the Nonsxxxxxxxx.xxx Internet site. Purchaser shall make available to Cardholders and Financial Products Customers at all times at least as much on-Controlling Note Holders line Account information and Note B Holder, in substance, management capability as made generally available to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreementits other proprietary card or General Purpose Credit Card programs. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder Purchaser shall be responsible for its pro rata share of any Servicing Advances (the expenses associated with providing the foregoing. Purchaser and advance interest thereon) Sears further agree to use their reasonable best efforts to transfer the operations and any additional trust fund expenses, but only to the extent that they relate to servicing and administration maintenance of the Notes and sxxxxxxxx.xxx Internet site (other than ownership of the Mortgaged Propertysxxxxxxxx.xxx Internet domain name, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating which shall be licensed to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established Purchaser under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Licensing Agreement), accompanied by a certified copy from Sears to Purchaser as soon as practicable after the Effective Date with the same level of functionality existing as of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisionsEffective Date.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case In consideration of the Participant's agreement to purchase Participations from the terms of this AgreementMortgage Originator, the Mortgage Loan shall be serviced prior Originator hereby agrees to act as the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien servicer of the Mortgage thereon, subject to the terms Loans in each Mortgage Pool. So long as any indebtedness remains outstanding on any of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may electMortgage Loans, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with Mortgage Originator shall service such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer Mortgage Loans until all payments due with respect to the related Participation are paid in full, and to that end will, by way of illustration only and without limitation:
(a) Proceed with reasonable diligence to collect all payments on the Mortgage Loam as and when they shall become due and payable, exercising the same standard of care and using the same methods that the Mortgage Originator would use in servicing mortgage loans held in its portfolio or, if higher, the standard of care and methods used in the mortgage loan servicing industry for the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.loans held by others;
(b) In no event shall At the Note B Holder be entitled to exercise any rights direction of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except Participant, remit to the extent Participant on or before the Note B Holder is given such rights expressly under tenth day of each month (i) the terms Participant's pro rata share of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received principal collected on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on outstanding Mortgage Loans during the “master servicer remittance date” under the Securitization Servicing Agreement;
previous month and (ii) accrued interest on the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) outstanding Participation Principal Balance for each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, Participation as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-Paragraph 1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreementabove; provided, however, that until if any collections on a replacement servicing agreement has been entered intoMortgage Loan are due to foreclosure or other liquidation of the Mortgage Loan, then such collections shall be applied in accordance with Paragraph 5 above;
(c) Cause the Note A-1-1 Holder shall cause related mortgagor to maintain hazard insurance policies, including but not limited to policies of flood insurance if required, covering the mortgaged premises in an amount at least equal to the outstanding mortgage balance;
(d) Keep records pertaining to each mortgage note and the collections thereon and permit the Participant to examine these and other records pertaining to each of the Mortgage Loans at such times as the Participant may elect during the Mortgage Originator's business hours; and
(e) Cause the taxes on the mortgaged premises securing each Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force examined annually and effect with respect report any delinquent taxes to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisionsParticipant.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced pursuant to this Agreement and (i) prior to the Lead Securitization Date Date, under interim servicing arrangements as directed by the Note A-1-1 A-1 Holder and from and (ii) after the Lead Securitization Date (except as otherwise set forth in Section 5(b))Date, pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing AgreementAgreement (including a determination of recoverability thereunder). The Note B Holder Each Noteholder acknowledges that each Senior Note Holder other Noteholder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such Holderother Noteholder, at such Senior Note Holderother Noteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Trustee under the Securitization Servicing Agreement by the Depositor, and the appointment of the Special Servicer as the initial Special Servicer under the Servicing Agreement by the Depositor (subject to replacement by the Controlling Noteholder as provided herein) and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder Noteholders set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the any Servicer to enforce the rights of any Noteholder against any other Noteholder or limit the any Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.other
Appears in 1 contract
Samples: Agreement Between Noteholders (3650R 2021-Pf1 Commercial Mortgage Trust)
Servicing. (a) Each Noteholder The Servicer shall service the Purchased Mortgage Loans in accordance with Accepted Servicing Practices (as defined in the Master Repurchase Agreement) and the Servicing Addendum. The Servicer shall not resign as servicer or transfer the servicing of any Purchased Mortgage Loan without the prior written consent of the Required Noteholders and the Standby Servicer. The Servicer shall not be permitted to resign unless a successor servicer has been appointed or the Standby Servicer has assumed the role of Servicer. If the Standby Servicer is unable or unwilling to act as successor Xxxxxxxx, it may petition a court of competent jurisdiction to appoint such successor. The Indenture Trustee shall provide the Rating Agency with written notice upon any resignation of the Servicer pursuant to Section 4.3. The Servicer shall hold or cause to be held all escrow funds collected with respect to the Purchased Mortgage Loans in trust accounts (each of which shall be an Eligible Account) in trust for the Holders of the Notes and shall apply the same for the purposes for which such funds were collected. The Servicer will maintain all Servicing Records not in the possession of the Mortgage Loan Custodian in good and complete condition in accordance with industry practices for assets similar to the Purchased Mortgage Loans and preserve them against loss. On each Business Day, the Indenture Trustee shall electronically provide the Servicer with a schedule of Mortgage Loans subject to the Master Repurchase Agreement. In connection with the foregoing, the Servicer hereby acknowledges and agrees that, subject in each case to the terms of this Agreement, Servicer is servicing the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, Loans subject to the terms Master Repurchase Agreement for the benefit of Issuer and the Indenture Trustee, on behalf of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other NoteholderNoteholders.
(b) In no event Except under the circumstances specified in Section 5.2(c), the Servicer shall the Note B Holder be entitled to exercise any rights cause all Income received by it on account of the “directing holder” consulting class or any analogous class or holder Purchased Mortgage Loans to be deposited in the Buyer’s Account within one (1) Business Day of receipt; provided, however, that, if the Standby Servicer is the Servicer, such amounts shall be deposited within two (2) Business Days of receipt. The Payment Account shall only contain collections on the Purchased Assets subject to this Indenture. As further provided in Section 5.1 hereof, the Payment Account shall be held at U.S. Bank National Association, in the name of and under the Securitization Servicing Agreement except sole control of the Indenture Trustee. Neither the Seller nor the Servicer shall have any right to direct any disposition of funds from the Payment Account or to give any instructions of any kind to the extent Indenture Trustee with respect to the Note B Holder is given Payment Account. Upon making any deposit into Payment Account, the Servicer shall provide the Indenture Trustee with the loan identification number and the principal and interest attributable to such rights expressly under Mortgage Loan which shall have been deposited into the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling NoteholderPayment Account.
(c) In no event may The Servicer shall service the Securitization Purchased Mortgage Loans for a term of thirty (30) days (the “Servicing Term”) commencing as of the date of the related initial Purchase Date. Each such Servicing Term shall be deemed to be renewed or terminated. If such Servicing Term is not renewed (which is hereby deemed renewed unless (i) a Servicing Termination Event has occurred and is continuing or (ii) if the Seller is the Servicer, a Repo Trigger Event under the Master Repurchase Agreement change the interest allocable to, or the amount of any payments due tohas occurred and is continuing), the Note B-1 Holder or Note B-2 Holder or materially increase Servicer agrees that the Controlling Noteholder’s obligations or materially decrease Indenture Trustee may terminate the Controlling Noteholder’s rights, remedies or protections Servicer as servicer hereunder or otherwise adversely affect at will and the Controlling Noteholder’s rights hereunderServicer shall transfer the servicing as described below.
(d) The Securitization Servicing Agreement On each Reporting Date, the Servicer shall contain provisions furnish to the effect Issuer, the Rating Agency and the Indenture Trustee the Asset Tape for the Purchased Mortgage Loans as of the last day of the calendar month preceding the related Reporting Date and a Monthly Servicer Report for such Reporting Date; provided, that:
(i) any payments received on , with respect to the first Reporting Date, the Asset Tape and the Monthly Servicer Report for the Purchased Mortgage Loans will be as of the Closing Date. Included in such Asset Tape shall be the delinquency status of each Purchased Mortgage Loan shall be paid by without including in such determination any payment holidays or skip payments. If the Master Servicer should discover that, for any reason whatsoever, the Servicer or any entity responsible to each the Servicer for managing or servicing any such Purchased Mortgage Loan has failed to perform fully the Servicer’s obligations under the Program Agreements or any of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating obligations of such entities with respect to the Purchased Mortgage Loan, the Mortgage Loan Borrower Servicer shall promptly notify the Indenture Trustee and the Standby Servicer.
(e) Neither the Servicer nor those acting on the Servicer’s behalf shall amend, modify, or the Mortgaged Property as such Person may reasonably request and in the possession waive any term or condition of, or collected settle or known bycompromise any claim in respect of, any item of the Master Servicer or Special Servicer relating to the Purchased Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report Loans or any other information relating to the Special Servicer’s workout strategy related rights or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under Program Agreements without the Securitization Servicing Agreement and prior written consent of Holders of 66 2/3% of each Class of Notes, except if such action may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended taken without the consent of the Note B Holder any Holders if such amendment would action does not (i) affect the amount or timing of any payment of principal or interest payable with respect to a Purchased Mortgage Loan, extend its scheduled maturity date, modify its interest rate, or constitute a cancellation, reduction or discharge of its outstanding principal balance or (ii) materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed security afforded by the Master Servicer real property, furnishings, fixtures, or the Special Servicer, as applicable, as set forth in the Servicing Agreementequipment securing such Asset.
(f) At any time after The Indenture Trustee is not responsible for the Securitization Date that Servicer’s performance of its obligations under this Indenture, the Note A-1-1 Servicer is no longer subject to the provisions not an agent of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing AgreementIndenture Trustee, and (ii) cause under no circumstances shall the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to Indenture Trustee be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing liable for any action or inaction of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisionsServicer.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Indenture (loanDepot, Inc.)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case a. Pursuant to the terms Servicing Agreements, Sellers, any Trust Subsidiary and REO Subsidiary, respectively have contracted with the applicable Servicer to service the Purchased Mortgage Loans, Trust Mortgage Loans, and REO Properties consistent with the degree of this Agreementskill and care that Sellers customarily require with respect to similar Mortgage Loans and REO Properties owned or managed by them and in accordance with Servicing Guidelines. The Sellers and Servicers shall (i) comply with all applicable Federal, State and local laws and regulations, (ii) maintain all state and federal licenses necessary for it to perform its servicing responsibilities hereunder and (iii) not impair the rights of Buyer in any Purchased Mortgage Loan Loans, Trust Mortgage Loans and REO Properties or any payment thereunder. Buyer may terminate the servicing of any Purchased Mortgage Loans, Trust Mortgage Loans or REO Properties with the then-existing servicer in accordance with Section 12(e) hereof.
x. Xxxxxxx shall and shall cause the applicable Servicer to hold or cause to be serviced prior held all escrow funds collected by Sellers and Servicers with respect to any Purchased Mortgage Loans, Trust Mortgage Loans and REO Properties in trust accounts and shall apply the Securitization Date under interim servicing arrangements as directed same for the purposes for which such funds were collected.
x. Xxxxxxx shall and shall cause the applicable Servicer to deposit all collections received by the Note A-1-1 Holder applicable Servicer on the Purchased Mortgage Loans, Trust Mortgage Loans and from and after REO Properties in the Securitization Date (except as otherwise accounts set forth in Section 5(b))9.
x. Xxxxxxx shall provide to Buyer (i) a Servicer Notice and Pledge addressed to and agreed to by PennyMac Loan Services, pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms LLC of the related Non-Lead Purchased Mortgage Loans, Trust Mortgage Loans and REO Properties, and (ii) a Servicer Notice addressed to and agreed to by Specialized Loan Servicing Agreement) if LLC of the related Trust Mortgage Loans and REO Properties, advising such principal or Servicer of such matters as Buyer may reasonably request, including, without limitation, recognition by such Servicer of Buyer’s interest is not paid by in such Purchased Mortgage Loans, Trust Mortgage Loans and REO Properties and such Servicer’s agreement that upon receipt of notice of an Event of Default from Buyer, it will follow the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related instructions of Buyer with respect to the maintenance Purchased Mortgage Loans, Trust Mortgage Loans and REO Properties and any related Income with respect thereto.
e. Upon the occurrence and continuation of an Event of Default hereunder, Buyer shall have the Mortgaged Property right to immediately terminate each Servicer’s right to service the Purchased Mortgage Loans, Trust Mortgage Loans and maintenance and enforcement REO Properties without payment of the lien of the Mortgage thereon, subject to the terms of the Securitization any penalty or termination fee under any Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may electSellers and the Servicers shall cooperate in transferring the applicable servicing of the Purchased Mortgage Loans, Trust Mortgage Loans and REO Properties to a successor servicer appointed by Buyer in its sole discretion.
f. If Sellers should discover that, for any reason whatsoever, Sellers or any entity responsible to include Sellers for managing or servicing any such Purchased Mortgage Loan, Trust Mortgage Loan or REO Property has failed to perform fully any Seller’s obligations under the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate Program Agreements or any of the obligations of such entities with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject respect to the terms Purchased Mortgage Loans, Trust Mortgage Loans and conditions REO Properties, Sellers shall promptly notify Buyer.
g. PennyMac Loan Services, LLC shall service the Purchased Mortgage Loans, Trust Mortgage Loans and REO Properties on behalf of this AgreementBuyer for ninety (90) day intervals which will automatically terminate if not renewed by Buyer, each Noteholder hereby irrevocably and unconditionally consents to which renewal shall be evidenced by delivery of a renewal letter substantially in the appointment form of Exhibit C hereto.
h. For the Master Serviceravoidance of doubt, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect Sellers retain no economic rights to the servicing of the Purchased Mortgage Loan in accordance with this Agreement Loans, Trust Mortgage Loans and REO Properties; provided that the Securitization Servicing AgreementSellers shall and shall cause the Servicers to continue to service the Purchased Mortgage Loans, Trust Mortgage Loans and REO Properties hereunder as part of the Obligations hereunder. Each Noteholder hereby irrevocably appoints the Master ServicerAs such, the Special Servicer Sellers expressly acknowledge that the Purchased Mortgage Loans, Trust Mortgage Loans and the Trustee in the Securitization as such Noteholder’s attorney-in-fact REO Properties are sold to sign any documents reasonably required with respect Buyer or transferred to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class REO Subsidiary or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special ServicerTrust Subsidiary, as applicable, as set forth in the Servicing Agreementon a “servicing released” basis.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Master Repurchase Agreement (PennyMac Mortgage Investment Trust)
Servicing. KBK hereby appoints Seller as servicing agent for KBK (a"Servicer") Each Noteholder acknowledges for the purpose of expediting the payment of accounts purchased by KBK hereunder which become past due. Servicer agrees to maintain an active, on-going and regular dialogue with each Account Debtor. Servicer further agrees to utilize all powers, influences and rights and take every action within its control in accordance with its customary practices and applicable law to expedite the collection of the accounts purchased by KBK which become past due and direct such payments in specie exclusively to the Authorized Remittance Address. Seller will furnish to KBK, upon request, any and all papers, documents and records in its possession or control related to accounts purchased by KBK hereunder, or related to Seller's business relationship with the respective account debtors, and agrees to cooperate fully with KBK in all matters related to collection of accounts purchased by KBK hereunder. KBK reserves the right to terminate such servicing relationship at any time with or without cause and without notice to Servicer. Seller authorizes KBK to forward directly to account debtors statements or invoices on accounts purchased by KBK hereunder, and to request payment at such address or to such bank account as may be designated by KBK. Seller agrees that, if any payment is made to Seller on any account purchased by KBK from Seller hereunder, Seller (i) will hold such payment in trust for KBK, (ii) will not commingle such payment with any funds of Seller, and (iii) will deliver such payment to KBK, in the exact form received, by the close of business on the next business day following receipt thereof by Seller. With respect to all accounts purchased by KBK from Seller hereunder, Seller shall direct all account debtors for such accounts to remit all payments pertaining to such accounts directly to the Authorized Remittance Address. If any payment on such accounts is received by Seller (rather than sent to the Authorized Remittance Address), Seller shall give prompt notice thereof to KBK. Without limiting the other rights and remedies of KBK under this Agreement or otherwise, Seller's failure to strictly comply with this Section 8 shall constitute an immediate breach of and default under this Agreement, entitling KBK (in KBK's discretion) to immediately terminate this Agreement. If any goods relating to an account purchased by KBK hereunder shall be returned to or repossessed by Seller, Seller shall give prompt notice thereof to KBK and shall hold such goods in trust for KBK, separate and apart from Seller's own property, and such goods shall be owned solely by KBK and be subject to KBK's direction and control. Seller shall properly store and protect such goods and agrees to cooperate fully with KBK in any subsequent disposition thereof for the benefit of KBK. Seller authorizes KBK to collect, sue for and give releases for in the name of Seller or KBK ix XBK's sole discretion, all amounts due on accounts sold to KBK hereunder. Seller specifically authorizes KBK to endorse, in the name of Seller, all checks, drafts, trade acceptances or other forms of payment tendered by account debtors in payment of accounts sold to KBK hereunder and made payable to Seller. KBK shall have no liability to Seller for any mistake in the application of any payment received with respect to any account, IT BEING THE SPECIFIC INTENT OF THE PARTIES HERETO THAT KBK SHALL HAVE NO LIABILITY HEREUNDER FOR ITS OWN NEGLIGENCE except for its own gross negligence or willful misconduct. Seller hereby waives notice of nonpayment of any account sold to KBK hereunder as well as any and all other notices with respect to such accounts, demands or presentations for payment, and agrees that KBK may extend or renew from time to time the payment of, or vary or reduce the amount payable under or compromise any of the terms of, any account purchased by KBK, in each case without notice to or the terms consent of this AgreementSeller. Seller further authorizes KBK (or its designee) to open and remove the contents of any post office box of Seller or KBK (or its designee) which KBK believes contains mail relating to accounts, and in connection therewith or otherwise, to receive, open and dispose of mail addressed to Seller which KBK believes may relate to accounts, and in order to further assure receipt by KBK (or its designee) of mail relating to such accounts, to notify other parties including customers and postal authorities to change the Mortgage Loan shall be serviced prior address for delivery of such mail addressed to Seller to such address as KBK may designate. KBK agrees to use reasonable measures to preserve the Securitization Date under interim servicing arrangements as directed by contents of any such mail which does not relate to accounts purchased hereunder and to deliver same to Seller (or, at the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b))election of KBK, pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect notify Seller of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required address where Seller may take possession of such contents; provided, if Seller does not take possession of such contents within 30 days after notice from KBK to advance monthly payments take possession thereof, KBK may dispose of principal and interest on the applicable Non-Lead Securitization Note pursuant such contents without any liability to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing AgreementSeller). The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder Seller hereby irrevocably appoints KBK (and any employee, agent or other person designated by KBK, any of whom may act without joinder of the Master Servicer, the Special Servicer and the Trustee in the Securitization others) as such Noteholder’s attorneySeller's attorneys-in-fact and agents, in Seller's name, place and stead, to sign take all actions, execute and deliver all notices, negotiate such instruments and other documents, as may be necessary or advisable to permit KBK (or its designee) to take any documents reasonably required with respect to the administration and servicing all of the Mortgage Loan on its behalf under actions described in this paragraph or to carry out the Securitization Servicing Agreement (subject at purpose and intent thereof, as fully and for all times to the rights of the Noteholder set forth herein intents and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity purposes as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receiveSeller could itself do, and the Master Servicer hereby ratifies and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower confirms all that said attorneys-in-fact and agents may do or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required cause to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if done by virtue hereof. This power of attorney is irrevocable and deemed coupled with an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect theretointerest.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Servicing. (a) Each Noteholder acknowledges and agrees thatAt the option of either Lender, subject in each case to the terms of this AgreementLoan A individually, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b))B individually, pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereonboth Loans collectively may, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions limitations of this AgreementSection 14.19(a), each Noteholder hereby irrevocably and unconditionally consents to be serviced by a servicer (the appointment of “Servicer”) appointed by the Master Servicer, Special Servicer applicable Lender and the Trustee applicable Lender may delegate its ministerial collection and disbursement responsibilities under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect other Loan Documents to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause between the applicable Servicers to service Lender and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreementServicer; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder services provided by such Servicer shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect limited to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained collection of payments from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing AgreementBorrower, and the Note B Holder agrees disbursement of payments from Lender, and Lender shall retain all discretion and control over any discretionary decisions to reasonably negotiate be made by Lender hereunder and under the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereofother Loan Documents, upon the Mortgage Loan being transferred including without limitation all decisions relating to the Note B Holderwaivers, the Note B Holder conditions to disbursement, and defaults. Servicer shall be entitled to terminate the Servicing Agreement in its sole discretion without payment reimbursement of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (costs and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) each of the Indemnified Parties shall be indemnified (by Borrower as and to the same extent (but without duplication) as Lender is entitled thereto under the Lead Securitization Trust is required applicable provisions of this Agreement and the other Loan Documents. Servicer shall have the right to indemnify each exercise all rights of such Indemnified Parties in respect collection under this Agreement and enforce all payment obligations of other mortgage loans in the Lead Securitization Trust Borrower pursuant to the terms provisions of Servicing this Agreement andand the other Loan Documents. Without limiting the foregoing, in Lender A shall have the case right to appoint Lender B as its Servicer, Lender B shall have the right to appoint Lender A as its Servicer, and the Lenders shall have the right to appoint a third party as Servicer of both Loans collectively. Nothing herein shall limit the ability of either Lender to utilize the services of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisionsLender Consultant as provided herein.
(ib) The Servicing Agreement Either Lender, by written notice to Borrower, may terminate any appointment of a Servicer. Following such notice, the applicable Loan shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated serviced by the Master Servicer between the Senior Notesapplicable Lender itself, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of or by a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holdersubsequently appointed Servicer.
(jc) In Lender A and Lender B hereby notify Borrower that, until further notice, Lender B has appointed Lender A as the event Servicer of Loan B, and that both Loan A and Loan B shall be serviced collectively by Lender A.
(d) Appointment of a Servicer shall not relieve either Lender of any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filingobligations or liabilities hereunder.
Appears in 1 contract
Samples: Construction Loan Agreement (Sentio Healthcare Properties Inc)
Servicing. (a) As a condition of entering into a Transaction with respect to any Purchased Asset, Buyer may require a Seller Party to cause such Purchased Asset to be administered by Collateral Administrator or its agents for Seller for a term of thirty (30) days (the “Servicing Term”). If the Servicing Term expires with respect to any Purchased Asset (i) for any reason other than such Purchased Asset no longer being subject to a Transaction hereunder, or (ii) at any time other than during the occurrence and continuation of an Event of Default, then Collateral Administrator shall continue to service the Purchased Asset for an additional thirty (30) days. Each Noteholder thirty (30) day extension period shall automatically be deemed to be extended (subject to the limitations above) without notice unless Buyer notifies Seller in writing of such termination. Collateral Administrator shall service or cause to be serviced the applicable Purchased Asset in accordance with Accepted Servicing Practices and in accordance with all applicable Requirements of Law and the provisions of any applicable servicing agreement. Each Seller Party acknowledges that Buyer may from time to time retain an Asset Manager with respect to the Purchased Assets, and agrees thatin such events Seller Parties shall pay to Buyer a non-refundable Asset Manager Fee. Seller Parties may appoint a successor Collateral Administrator acceptable to Buyer in its reasonable discretion. If Buyer does not appoint an Asset Manager or consents to terminate the obligation to pay the Asset Manager Fee, subject the Asset Manager Fee shall cease to be an obligation of Seller Parties.
(b) The Collateral Administrator may delegate to any Person any of its obligations hereunder; provided, however, that the Collateral Administrator shall cause the performance of all subcontracted services and any subservicing agreement to be consistent with the provisions of this Agreement. Notwithstanding any such subservicing agreement, the Collateral Administrator shall be obligated to the same extent and under the same terms and conditions as if the Collateral Administrator alone was servicing the Purchased Assets in each case to accordance with the terms of this Agreement. Notwithstanding any other provision of this Agreement, the Mortgage Loan any fees or other compensation payable to any subservicer shall be serviced prior the responsibility of Seller. Any subservicing agreement that may be entered into and any transactions or services relating to the Securitization Date under interim servicing arrangements Purchased Assets involving a subservicer in its capacity as directed by such shall be deemed to be between the Note A-1-1 Holder subservicer and from the Collateral Administrator alone, and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer Buyer shall not be obligated deemed a party thereto and shall have no obligations, duties or liabilities with respect to advance monthly payments of principal or interest in respect the subservicer. Buyer agrees that it has no rights to direct and that it will not deliver any instructions to a subservicer servicing a Purchased Asset on behalf of the Notes Collateral Administrator unless an Event of Default has occurred or is continuing or the Collateral Administrator is terminated.
(c) At Buyer’s request, Seller Parties shall cause the transfer of servicing from Collateral Administrator to Asset Manager of each Purchased Asset, together with all of the related Records in its possession, to Buyer’s designee upon the earliest of (i) the occurrence and continuation of an Event of Default hereunder, (ii) the occurrence and continuation of an Event of Default under the Collateral Administration Agreement, or (iii) the termination of the Servicing Term.
(d) During the period a Collateral Administrator or its agent is servicing the Purchased Asset, Collateral Administrator shall agree that Buyer is entitled to the related Credit Files and Records and Collateral Administrator shall at all times maintain and safeguard (or cause to be maintained and safeguarded) the Credit File for the Purchased Asset (including photocopies or images of the documents delivered to Buyer), and accurate and complete records of its (or its agent’s) servicing of the Purchased Asset; such Collateral Administrator’s (or its agent’s) possession of the Credit Files and Records being for the sole purpose of servicing such Purchased Asset and such retention and possession by Collateral Administrator (or its agent’s) being in a custodial capacity only.
(e) At Buyer’s request, Seller Parties shall promptly deliver to Buyer reports regarding the status of any Purchased Asset being serviced by or on behalf of a Seller Party, which reports shall include, but shall not be limited to, a description of any default thereunder for more than thirty (30) days or such other than circumstances that could cause a material adverse effect on such Purchased Asset, Buyer’s rights to such Purchased Asset or the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall collateral securing such Purchased Asset; Seller Parties may be required to advance monthly payments deliver such reports until the release of principal the Purchased Asset by Buyer. Seller Parties shall immediately notify Buyer if it becomes aware of any payment default that occurs under the Purchased Asset or any default under any Collateral Administration Agreement that would materially and interest on adversely affect any Purchased Asset subject thereto.
(f) Seller Parties shall release its custody of the contents of any Credit File or Asset File only (i) in accordance with the written instructions of Buyer, (ii) upon the consent of Buyer when such release is required as incidental to Seller Parties’ or their agent’s servicing of the Purchased Asset, or (iii) as required by any applicable Non-Lead Securitization Note pursuant Requirement of Law.
(g) Buyer reserves the right to appoint a successor Collateral Administrator at any time following an Event of Default that is continuing to service any Purchased Asset (each, an “Asset Manager”) in its sole discretion. If Buyer elects to make such an appointment, Seller Parties shall be assessed all costs and expenses incurred by Buyer associated with transferring the servicing of the Purchased Asset to the terms Asset Manager. In the event of such an appointment, Seller Parties shall perform all acts and take all action so that any part of the Credit File and related Records held by Seller Parties, together with all receipts relating to such Purchased Asset, are promptly delivered to Asset Manager, and shall otherwise reasonably cooperate with Buyer in effectuating such transfer. Seller Parties shall have no claim for lost servicing income, lost profits or other damages if Buyer appoints an Asset Manager hereunder and the servicing fee is reduced or eliminated.
(h) Seller Parties shall provide promptly to Buyer a Collateral Administrator Notice addressed to and agreed to by the Collateral Administrator of the related Non-Lead Servicing Agreement) if Purchased Assets, advising such principal or interest is not paid Collateral Administrator of such matters as Buyer may reasonably request, including, without limitation, recognition by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxesCollateral Administrator of Buyer’s interest in such Purchased Assets and the Collateral Administrator’s agreement that upon receipt of notice of an Event of Default from Buyer, insurance premiums and other expenses related it will follow the instructions of Buyer with respect to the maintenance Purchased Assets and any related Income with respect thereto.
(i) For the avoidance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereondoubt, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization Collateral Administration Agreement and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to Seller shall not retain the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect economic rights to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Purchased Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean indivisible from such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisionsPurchased Asset.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Servicing. (a) Each Noteholder acknowledges As of the Original Forbearance Effective Date, each Loan Party and agrees thatLender hereby revocably appoint and reaffirm FCMC as servicer, subject in each case and FCMC hereby reaffirms its acceptance of such appointment, to act for the terms benefit of this Agreement, the Borrowers and Lender as initial servicer of the Mortgage Loans and the REO Properties owned by any Loan shall be serviced prior Party; provided, however, Lender reserves the right to the Securitization Date under interim terminate FCMC’s servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than Mortgage Loans and REO Properties (i) upon prior written notice to FCMC during the Notes included occurrence and continuance of a Forbearance Default or (ii) if Lender provides prior written notice to FCMC, that Lender has determined, in its sole discretion, that FCMC is not serving the Lead Securitization (Loans in accordance with Accepted Servicing Practices. FCMC shall service the Mortgage Loans and each Non-Lead Master Servicer shall be required the REO Properties pledged to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note Lender pursuant to the terms of the related Non-Lead Loan Documents and in accordance with Accepted Servicing Agreement) if such principal or interest is not paid by the Mortgage Practices. No Loan Borrower but Party shall be obligated to advance delinquent real estate taxes, insurance premiums and permit any Person other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereonthan FCMC and, subject to the terms of the Securitization limitations provided in Section 12(b) above, Franklin Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretionLLC, to include the related Senior Note in service any Mortgage Loans or REO Properties (other than a Securitization and agrees that it will, subject sub-servicer satisfactory to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan Lender) in accordance with this Agreement and Accepted Servicing Practices, without the Securitization Servicing Agreementprior written consent of Lender. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement Cash Flow Coverage. Until such time as all Tranche A Advances and Tranche B Advances are indefeasibly paid in full, Holding and each Subsidiary on a consolidated basis shall contain provisions maintain as of the end of each quarterly period a ratio of Cash Flow Available for Debt Service to the effect that:
Debt Service of not less than 1.20 to 1.00, with such ratio being determined (i) any payments received initially as of September 30, 2008, for the period from January 1, 2008, through and including September 30, 2008 (on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1year-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1to-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreementdate basis), and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreementof December 31, 2008, and all references herein to continuing as of the end of each quarter thereafter, for the most recently-ended twelve consecutive (12) month period ending on such date. “Securitization Servicing AgreementCash Flow Available for Debt Service” shall mean for any period all Collections (which term includes without limitation all servicing fees paid in cash, net payments received in cash pursuant to Interest Rate Hedge Agreements, due diligence fees paid in cash, interest payments and dividends paid in cash and any other cash payments); provided that for the purposes of the determination of Cash Flow, each such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder item of Collection shall cause the Mortgage Loan be required to be serviced in accordance with the servicing provisions set forth received by Lender in the Securitization Servicing Agreement as if such agreement was still Lock Box or turned over to Lender by the applicable Loan Party and deposited in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing one of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing AgreementBlocked Accounts at Huntington, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
each instance (i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only applied to the extent that they relate Obligations (other than to servicing and administration principal of the Notes and the Mortgaged PropertyTranche D Advances, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover unless such Servicing Advances application is accompanied by a permanent reduction thereof) or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) each used to establish or augment any Reserves. “Debt Service” shall mean for any period the sum of the Indemnified Parties (i) Interest Expense, plus (ii) scheduled principal payments on Indebtedness. “Interest Expense” shall be indemnified mean for any period total interest expense (as other than PIK Interest), whether paid or accrued or due and to the same extent the Lead Securitization Trust is required to indemnify each of such Indemnified Parties payable (including without limitation in respect of other mortgage loans in all Advances and any Subordinated Indebtedness), plus the Lead Securitization Trust interest component of capital lease obligations for such period, plus all bank fees capitalized pursuant to GAAP (other than the terms of Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this AgreementRestructuring Fee), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” plus net costs under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisionsInterest Rate Hedge Agreements.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Forbearance Agreement
Servicing. 3. The Servicer shall service the Purchased Mortgage Loans in accordance with Accepted Servicing Practices (aas defined in the Master Repurchase Agreement) Each Noteholder and the Servicing Addendum. The Servicer shall not resign as servicer or transfer the servicing of any Purchased Mortgage Loan without the prior written consent of the Required Noteholders and the Standby Servicer. The Servicer shall not be permitted to resign unless a successor servicer has been appointed or the Standby Servicer has assumed the role of Servicer. If the Standby Servicer is unable or unwilling to act as successor Xxxxxxxx, it may petition a court of competent jurisdiction to appoint such successor. The Indenture Trustee shall provide the Rating Agency with written notice upon any resignation of the Servicer pursuant to Section 4.3. The Servicer shall hold or cause to be held all escrow funds collected with respect to the Purchased Mortgage Loans in accounts (each of which shall be an Eligible Account) for the Holders of the Notes and shall apply the same for the purposes for which such funds were collected. The Servicer will maintain all Servicing Records not in the possession of the Mortgage Loan Custodian in good and complete condition in accordance with industry practices for assets similar to the Purchased Mortgage Loans and preserve them against loss. On each Business Day, the Indenture Trustee shall electronically provide the Servicer with a schedule of Mortgage Loans subject to the Master Repurchase Agreement. In connection with the foregoing, the Servicer hereby acknowledges and agrees that, the Servicer is servicing the Mortgage Loans subject in each case to the terms Master Repurchase Agreement for the benefit of this AgreementIssuer and the Indenture Trustee, on behalf of the Noteholders.
4. Except as set forth below, the Servicer shall cause all Income received by it on account of the Purchased Mortgage Loans to be deposited in the Buyer’s Account within one (1) Business Day of receipt; provided, however, that, if the Standby Servicer is the Servicer, such amounts shall be deposited within two (2) Business Days of receipt. Notwithstanding the foregoing, following the occurrence and continuance of an Event of Default or a Repo Trigger Event and a Trust Officer of the Indenture Trustee receiving written notice or having actual knowledge of such an event, the Indenture Trustee will direct the Servicer to remit all Income into the Payment Account.
5. The Payment Account shall only contain collections on the Purchased Assets subject to this Indenture. As further provided in Section 5.1 hereof, the Payment Account shall be held at U.S. Bank National Association, in the name of and under the sole control of the Indenture Trustee. Neither the Seller nor the Servicer shall have any right to direct any disposition of funds from the Payment Account or to give any instructions of any kind to the Indenture Trustee with respect to the Payment Account. Upon making any deposit into Payment Account, the Servicer shall provide the Indenture Trustee with the loan identification number and the principal and interest attributable to such Mortgage Loan which shall have been deposited into the Payment Account.
6. The Servicer shall service the Purchased Mortgage Loans for a term of thirty (30) days (the “Servicing Term”) commencing as of the date of the related initial Purchase Date. Each such Servicing Term shall be serviced prior deemed to be renewed or terminated. If such Servicing Term is not renewed (which is hereby deemed renewed unless (i) a Servicing Termination Event has occurred and is continuing or (ii) if the Seller is the Servicer, a Repo Trigger Event under the Master Repurchase Agreement has occurred and is continuing), the Servicer agrees that the Indenture Trustee may terminate the Servicer as servicer hereunder at will and the Servicer shall transfer the servicing as described below.
7. On each Reporting Date, the Servicer shall furnish to the Securitization Issuer, the Rating Agency and the Indenture Trustee the Asset Tape for the Purchased Mortgage Loans as of the last day of the calendar month preceding the related Reporting Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b))a Monthly Servicer Report for such Reporting Date; provided, pursuant that, with respect to the Securitization Servicing Agreement; provided that first Reporting Date, the Master Asset Tape and the Monthly Servicer Report for the Purchased Mortgage Loans will be as of the Closing Date. Included in such Asset Tape shall be the delinquency status of each Purchased Mortgage Loan without including in such determination any payment holidays or skip payments. If the Servicer should discover that, for any reason whatsoever, the Servicer or any entity responsible to the Servicer for managing or servicing any such Purchased Mortgage Loan has failed to perform fully the Servicer’s obligations under the Program Agreements or any of the obligations of such entities with respect to the Purchased Mortgage Loan, the Servicer shall promptly notify the Indenture Trustee and the Standby Servicer.
8. Neither the Servicer nor those acting on the Servicer’s behalf shall amend, modify, or waive any term or condition of, or settle or compromise any claim in respect of, any item of the Purchased Mortgage Loans or any related rights or any of the Program Agreements without the prior written consent of Holders of 66 2/3% of each Class of Notes, except if such action may be taken without the consent of any Holders if such action does not be obligated to advance monthly payments (i) affect the amount or timing of any payment of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer payable with respect to the servicing of the a Purchased Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master ServicerLoan, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on extend its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; howeverscheduled maturity date, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in modify its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable torate, or the amount constitute a cancellation, reduction or discharge of any payments due to, the Note B-1 Holder its outstanding principal balance or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan security afforded by the real property, furnishings, fixtures, or the Note B Holder’s rights with respect theretoequipment securing such Asset.
(e) Notwithstanding anything to 9. The Indenture Trustee is not responsible for the contrary contained in Servicer’s performance of its obligations under this AgreementIndenture, any obligation the Servicer is not an agent of the Servicer pursuant to Indenture Trustee, and under no circumstances shall the terms hereof shall Indenture Trustee be performed by the Master Servicer liable for any action or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions inaction of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisionsServicer.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Indenture (loanDepot, Inc.)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case It is expressly acknowledged that the Servicing Rights relating to the terms Mortgage Loans purchased by the Buyer hereunder have been sold, assigned, and transferred by the Sellers to the Buyer along with the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans on behalf of the Buyer on an interim basis in accordance with Accepted Servicing Practices for the same type of mortgage loans as the Mortgage Loans and in a manner at least equal in quality to the servicing the Servicer provides for mortgage loans which it owns, provided that the Servicer shall at all times comply with applicable law and the requirements of any applicable insurer or guarantor so that the insurance and any applicable guarantee in respect of any Mortgage Loan is not voided or reduced. The Servicer shall at all times maintain accurate and complete records of its servicing of the Mortgage Loans, and the Buyer may, at any time during the Servicer’s business hours, on reasonable notice, examine and make copies of such records. On the second (2nd) day of each calendar month, or at any other time upon the Buyer’s request, the Servicer shall deliver to the Buyer reports regarding the status of the Mortgage Loans in accordance with Sections 9.27 and 9.28, which shall include, with respect to any MERS Designated Mortgage Loan, MERS Reports, and any circumstances that could materially adversely affect the Mortgage Loans, the Buyer’s ownership of the Mortgage Loans or the collateral securing the Mortgage Loans. The Servicer’s rights to interim service the Mortgage Loans as provided in this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest terminate on the applicable Non-Lead Securitization Note pursuant to the terms earlier of the related NonRepurchase Date or the date which is thirty days following the related Purchase Date; provided that, on each Repurchase Date for which a Mortgage Loan is subject to a new Transaction, such 30-Lead Servicing Agreement) if day interim servicing period is deemed renewed for such principal or interest new Transaction, and a new 30-day period is not paid deemed to commence as of such Repurchase Date, unless otherwise stated in writing by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance Buyer. If an Act of Insolvency of the Mortgaged Property Servicer or any default hereunder by the Servicer occurs at any time, the Servicer’s rights and maintenance obligations to service the Mortgage Loan(s), as provided in this Agreement, shall terminate immediately, without any notice or action by the Buyer. The Servicer agrees and enforcement of acknowledges that the lien Buyer may also, at any time, terminate the interim servicing of the Mortgage thereon, subject Loans by the Servicer and transfer servicing to another Person on such date as the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder Buyer may elect, determine in its sole discretion. In the event that anything in this Agreement is interpreted as constituting one or more interim servicing contracts, to include each such servicing contract shall terminate automatically upon the related Senior Note in earliest of (i) an Event of Default, (ii) the repurchase of a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note HolderMortgage Loan by a Seller or (iii) the Buyer’s sole cost and expense, to effect such Securitization. Subject notice to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents Servicer directing the Servicer to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the transfer servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer(provided, the Special Servicer and the Trustee in the Securitization Servicer’s obligations as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and to cooperate in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights transfer of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement such servicing shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholderterminate until such servicing has actually been transferred in full).
(b) In no event Within two Business Days of notice from the Buyer, or immediately upon notice if an Event of Default has occurred:
(i) New Century shall comply with the Note B Holder be entitled to exercise any rights provisions of Section 4.01 hereof; and
(ii) at the Buyer’s sole option, upon written notice from the Buyer, New Century shall transfer servicing of the “directing holder” consulting class Mortgage Loans to a Successor Servicer designated by the Buyer.
(c) New Century or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement its Affiliate, in its capacity as the Controlling Noteholder.
(c) In no event Servicer, shall permit the Buyer to inspect New Century’s or its Affiliate’s servicing facilities, as the case may be, for the Securitization Servicing Agreement change purpose of satisfying the interest allocable toBuyer that New Century or its Affiliate, or as the amount of any payments due tocase may be, has the Note B-1 Holder or Note B-2 Holder or materially increase ability to service the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunderMortgage Loans as provided in this Agreement.
(d) The Securitization Servicing Agreement If the servicer of the Mortgage Loans is New Century or the Servicer is an Affiliate of New Century, New Century shall contain provisions provide to the Buyer a letter from New Century or such Affiliate, as the case may be, to the effect that:
that upon one (i1) any payments received on day’s notice from the Buyer or immediately upon the occurrence of an Event of Default, the Servicer’s rights and obligations to service the Mortgage Loan Loans shall be paid terminate immediately, without any further notice or action by the Master Buyer and the Servicer shall transfer servicing to each the Buyer’s designee, at no cost or expense to the Buyer, it being agreed that New Century will pay any and all fees required to terminate the Servicer and to effectuate the transfer of servicing to the designee of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect theretoBuyer.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with With respect to the Mortgage Loan, provided, however, Loans that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed are serviced by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, Servicer agrees that the Certificate Administrator, Buyer is the Trustee, or the Lead Securitization Trust, as applicable, out owner of general funds in the collection account (or equivalent account) established under the Non-Lead all Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any Records. The Servicer covenants to safeguard such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due Records and to deliver them promptly to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator Buyer or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder designee (including the related Non-Lead Depositor and related Non-Lead TrusteeCustodian) shall use commercially reasonable efforts to timely comply with any such filingat the Buyer’s request.
Appears in 1 contract
Samples: Master Repurchase Agreement (New Century Financial Corp)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to After the terms of this Agreement, the Mortgage Loan shall be serviced origination but prior to the Securitization Date under securitization of the Loans originated by Column, ORIX Capital Markets LLC or such other servicer that is reasonably acceptable to the parties to this Agreement will act as servicer and CapitalSource will act as special servicer. After the origination but prior to the securitization of the Loans originated by CapitalSource, ORIX Capital Markets LLC or such other servicer that is reasonably acceptable to the parties to this Agreement will act as servicer and CapitalSource will act as primary servicer and special servicer. In each case, the servicing arrangement shall be documented in a separate interim servicing arrangements as directed by the Note A-1-1 Holder agreement (each, an “Interim Servicing Agreement”) which shall be in form and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant substance reasonably acceptable to the parties hereto. Upon the consummation of a Securitization or a Senior Participation Securitization, the Interim Servicing AgreementAgreement will terminate with respect to any Approved Loans or Senior Participation Interests securitized therein and no compensation shall be due to CapitalSource in connection with such termination.
(b) The Depositor shall choose the servicer for each Securitization or Senior Participation Securitization; provided provided, that, the servicer of the Approved Loans that are securitized must be on S&P’s approved list of servicers rated at least CMS3 by Fitch and acceptable to Mxxxx’x. CapitalSource shall choose the Master Servicer special servicer for each Securitization; provided, that, the special servicer of the Approved Loans that are securitized must be on S&P’s approved list of special servicers and must be acting as special servicer in one or more commercial mortgage loan securitizations that was rated by Mxxxx’x and Fitch in the prior six (6) months and Mxxxx’x or Fitch, as applicable, has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage securities; provided, further, that CapitalSource shall not be obligated entitled to advance monthly payments of principal choose the Special Servicer in connection with a Senior Participation Securitization or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees event that it will, subject to does not purchase the Subordinated Securities as required by Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and 4.03.
(c) CSFB agrees to reasonably cooperate with CapitalSource in CapitalSource’s efforts to obtain the Master Servicer necessary approvals and the Special Servicer with respect ratings to the servicing enable CapitalSource or an affiliate to act as servicer and special servicer of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other NoteholderSecuritizations.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan If, prior to a Securitization, CapitalSource receives all such approvals and ratings, CSFB and CapitalSource agree that CapitalSource shall be paid by retained as the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the and/or special servicer for such Securitization Servicing Agreement;
(ii) the Note B Holder and shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if compensated therefor at an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights annual rate consistent with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1then-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreementmarket standards; provided, however, that until a replacement servicing agreement has been entered into, CapitalSource shall not be retained as the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced servicer and/or special servicer in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder connection with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Senior Participation Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that or in the event that it does not purchase the funds received with respect Subordinated Securities as required by Section 4.03. CapitalSource agrees to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund all expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing process of obtaining the necessary approvals and administration ratings to enable it to act as servicer and special servicer of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);Securitizations.
(ii) each of the Indemnified Parties shall be indemnified (as If, prior to a Securitization, CapitalSource fails to receive all such approvals 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 Servicing Agreement andratings, in the case of the Lead Securitization Trust, to the extent of CSFB and CapitalSource agree that any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (servicer or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated retained for such Securitization shall agree to exercise the rights of the “Nonretain CapitalSource as sub-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Nonservicer or sub-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934special servicer, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filingapplicable.
Appears in 1 contract
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to this Agreement and the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization Note A-1 (and each any Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note A-2 or Note A-3, as applicable, pursuant to the terms of the related Non-Lead Securitization Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder Each Junior Noteholder acknowledges that each Senior Note Holder Noteholder may elect, in its sole discretion, to include the related its Senior Note in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such Holderthe applicable Senior Noteholder, at such Senior Note Holder’s Noteholder’s, sole cost and expenseexpense (including, without limitation, attorney’s fees), to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this the Servicing Agreement and the Securitization Servicing terms and provisions of this Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder Noteholders set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder against any other Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder.
(b) In no event The then Controlling Noteholder shall the Note B Holder be entitled to exercise any notice and consent rights of the “directing holder,” consulting “directing certificateholder,” “controlling class,” “controlling class representative” or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder such Noteholder is given expressly prohibited from exercising such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount or timing of any payments due to, the Note B-1 Holder or Note B-2 Holder Controlling Noteholder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) if an event of default under the Servicing Agreement has occurred (A) with respect to the Master Servicer under the Servicing Agreement that affects a Noteholder or any class of commercial mortgage securities backed by a Note or a participation interest in a Note, and the Master Servicer is not otherwise terminated under the Servicing Agreement, then the Junior Noteholders or the Junior Operating Advisor acting on behalf of the Junior Noteholders (if the Junior Noteholders are the Controlling Noteholder) shall be entitled to direct the Trustee to appoint a sub-servicer solely with respect to the Mortgage Loan (or if the Mortgage Loan is currently being sub-serviced, to replace the current sub-servicer, but only if such original sub-servicer is in default under the related sub-servicing agreement); and (B) the appointment (or replacement) of a sub-servicer with respect to the Mortgage Loan, as contemplated in clause (A) above, will in any event be subject to written confirmation from each Rating Agency that such appointment would not, in and of itself, cause a downgrade, qualification or withdrawal of the then-current ratings assigned to the securities issued in connection with any Securitization;
(ii) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(iiiii) the Note B Holder Controlling Noteholder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provideprovide access to, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person the Controlling Noteholder may reasonably request and is or would be customarily in the possession of, or collected or known by, the Master Servicer or the Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is provided and that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Lead Securitization Servicing Agreement Trust that includes other Notes but not limited to standard CREFC® reportsCREFC reports and Asset Status Reports, provided that if an interest in Note B the Controlling Noteholder or the related Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related PartyParty Affiliate, then the Note B Holder Controlling Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreementstrategy;
(iiiiv) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(ivv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder each Noteholder if such amendment would materially and adversely affect its rights thereunder; and
(vi) the Special Servicer appointed by the Junior Noteholders shall be named as the Special Servicer for the Mortgage Loan or under the Note B Holder’s rights with respect theretoServicing Agreement as of the closing of the Lead Securitization, as long as such Special Servicer satisfies the requirements of the Servicing Agreement.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Lead Securitization Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder Lead Securitization Noteholder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B HolderJunior Noteholders, in substance, to those in the Servicing Agreement (including, without limitation, all applicable provisions relating to delivery of information and reports necessary for any Non-Lead Securitization Servicing Agreementto comply with any applicable reporting requirements under the Securities Exchange Act of 1934, and (iias amended) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a any Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating AgencyAgency with respect to such subsequent servicing agreement; provided, further, however, that until a replacement servicing agreement has been entered into, the Lead Securitization Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder Lead Securitization Noteholder and the special servicer appointed by the Controlling Noteholder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note HolderNoteholder agrees that, if its the related Non-Lead Securitization Note is included in a Securitization, it shall cause the applicable Non-Lead Securitization Servicing Agreement to contain provisions to the effect that:
(i) the related Non-Lead Securitization Note Holder Noteholder shall be responsible for its pro rata share of any Servicing Property Protection Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Property Protection Advances or additional trust fund expenses, (A) the related Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the related Non-Lead Securitization Note HolderServicing Agreement for such Non-Lead Securitization Noteholder’s pro rata share of any such Nonrecoverable Servicing Property Protection Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the related Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the related Non-Lead Securitization Note HolderServicing Agreement for such Non-Lead Securitization Noteholder’s pro rata share of any such Nonrecoverable Servicing Property Protection Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 the Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the related Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the related Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the related Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the related Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the related Non-Lead Securitization Servicing Agreement;
(iii) the related Non-Lead Master Servicer Certificate Administrator will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Certificate Administrator’s receipt of notice of the Securitization of the related Non-Lead Securitization Note, notice of the deposit of the related Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the related Non-Lead Master Servicer, the special servicer related Non-Lead Special Servicer and the party designated to exercise the rights of the related “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the such executed Non-Lead Securitization Servicing Agreement and (ii) notice of any subsequent change in the identity of the related Non-Lead Master Servicer or the party designated to exercise the rights of the related “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the each Non-Lead Securitization Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(ih) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the among each Senior NotesNote, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note A-2 to the related Non-Lead Securitization Note A-2 Holder and in respect of Note A-3 to the Note A-3 Holder, as applicable.
(ji) In the event any filing is required to be made by any Non-Lead Depositor under the related Non-Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder Noteholder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
(j) Each Non-Lead Securitization Noteholder shall give each of the parties to the Servicing Agreement and the Junior Noteholders (that will not also be a party to the related Non-Lead Securitization Servicing Agreement) notice of the Non-Lead Securitization in writing (which may be by e-mail) promptly after the related Non-Lead Securitization Date. Such notice shall contain contact information for each of the parties to the related Non-Lead Securitization Servicing Agreement. In addition, after the related Non-Lead Securitization Date, the related Non-Lead Securitization Noteholder shall send a copy of the related Non-Lead Securitization Servicing Agreement to each of the parties to the Servicing Agreement and the Junior Noteholders.
(k) If a Non-Lead Securitization Note becomes the subject of an Asset Review pursuant to the related Non-Lead Securitization Servicing Agreement, the Master Servicer, the Special Servicer, the Trustee and the Custodian shall reasonably cooperate at the Non-Lead Securitization Note Holder’s expense with such Non-Lead Asset Representations Reviewer in connection with such Asset Review by providing such Non-Lead Asset Representations Reviewer with any documents reasonably requested by such Non-Lead Asset Representations Reviewer, but only to the extent that such documents are in the possession of the Master Servicer, the Special Servicer, the Trustee or the Custodian, as the case may be, and are not in the possession of the Non-Lead Asset Representations Reviewer (and the Non-Lead Asset Representations Reviewer has informed such party that it has first requested, and not received, the documents from the Non-Lead Master Servicer, the Non-Lead Special Servicer and the Non-Lead Custodian).
Appears in 1 contract
Samples: Agreement Between Noteholders (GS Mortgage Securities Trust 2017-Gs7)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to this Agreement and the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) A if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior the Note A Holder may elect, in its sole discretion, to include Note A in the related Senior Note in a A Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such Holderother Noteholder, at such Senior Note Holderother Noteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Trustee under the Securitization Servicing Agreement by the Depositor, and the appointment of the Special Servicer as the initial Special Servicer under the Servicing Agreement by the Depositor (subject to replacement by the Controlling Noteholder as provided herein) and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Note A Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder Noteholders set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the any Servicer to enforce the rights of any Noteholder against any other Noteholder or limit the any Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder. Each Servicer shall be required pursuant to the Servicing Agreement to service the Mortgage Loan in accordance with the Servicing Standard, the terms of the Mortgage Loan Documents, the Servicing Agreement and applicable law, and shall not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” ”, controlling or consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In The Servicing Agreement shall, with respect to the Mortgage Loan and the rights and obligations of the Servicer, the Note A Holder and the Note B Holder, include terms and conditions that are no less favorable to the Note B Holder than those set forth herein and in the Model PSA with respect to similarly structured AB Whole Loans that are serviced under the subject servicing agreement. Without limiting the foregoing, in no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 B Holder or materially increase the Controlling NoteholderNote B Holder’s obligations or materially decrease the Controlling NoteholderNote B Holder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling NoteholderNote B Holder’s rights hereunder. Furthermore, the Servicing Agreement must provide (as is provided in Section 3.24(a) of the Model PSA), that in the event of any conflict between the terms of the Servicing Agreement and this Agreement, this Agreement shall govern.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:that (and to the extent such following provisions are not included in the Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder Controlling Noteholder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provideprovide access to, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person the Controlling Noteholder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or the Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Note A Securitization Servicing Agreement Trust but not limited to standard CREFC® reportsCREFC reports and Asset Status Reports, provided that if an interest in Note B the Controlling Noteholder or the related Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder Controlling Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Informationexcluded information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would be materially and adverse to the Note B holder or would materially adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 A is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 A Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.Servicing
Appears in 1 contract
Samples: Agreement Between Noteholders (BENCHMARK 2018-B2 Mortgage Trust)
Servicing. (a) Each Noteholder acknowledges Lender hereby appoints Servicer to service the Loans in accordance with the common servicing standards established for the GreenSky® Program as provided herein.
(b) Servicer agrees to service the Loans for Lender in accordance with the customary industry servicing practices of prudent lending institutions that service loans of the same type as the Loans, which shall include, but not be limited to, account opening, transaction processing, customer service, statement generation, reporting, billing, repayment disbursements, management, administration, collection, and customer service, in accordance, where applicable, with the criteria established and adopted by Lender and set forth in this Servicing Agreement including Schedule A (“Servicing”).
(c) Servicer agrees thatto deliver to Lender by no later than the fourth Business Day of each month the Servicer reports with respect to the Loans as are set forth on Schedule B. These reports will include a file, subject in an electronic format agreed upon by the parties, identifying all Loans (along with all supporting details, including relevant Borrower data and payment history) and individual loan level data including the account number, plan number and month of funding. The Servicer reports set forth on Schedule B will also include such information separately designated for all Loans constituting Portfolio Credit Losses for the month just ended and a listing of all recoveries of Portfolio Credit Losses for the month just ended.
(d) On behalf of Lender, Servicer shall have full power and authority to do any and all things on behalf of Lender in connection with such Servicing that are customary for loan servicers in accordance with all applicable Laws, consistent with regulatory guidance obtained or derived by Lender in good faith from a Governmental Authority with jurisdiction over financial institutions and reasonably necessary or desirable for the benefit of Lender, provided that except as provided herein, until a Loan is 90 or more days past due, and thereafter if Servicer has not compensated Lender for the full amount of the related Portfolio Credit Loss, Servicer shall not, without the prior approval of Lender, (i) modify the terms of the Loans, including, but not limited to, interest rate and maturity date, or (ii) waive Borrower payment delinquencies.
(i) Notwithstanding the generality of the foregoing, as reasonably necessary or desirable for the benefit of Lender, Lender authorizes Servicer to settle all Borrower complaints and disputes on behalf of, and in the name of, Lender, provided that any such settlement may involve a total amount (principal, finance charges, and fees) of no more than $20,000.00 individually for any Loan and may not cause the aggregate amount waived in any calendar year to exceed $500,000.00 (other than with respect to Loans where Lender has been compensated in full for the related Portfolio Credit Losses). Such authority includes, without limitation, filing chargebacks with the applicable payment card network, enforcing contractual rights to reimbursement or refunds from Program Merchants and Sponsors, crediting Borrower(s) accounts, and executing settlement and release agreements adopted by Lender substantially in the form attached hereto as Schedule D. In the event that any settlement amount would exceed $20,000.00 individually or cause the above annual threshold to be exceeded in the aggregate (other than with respect to Loans where Lender has been compensated in full for the related Portfolio Credit Losses), Servicer will consult with Lender for final settlement authority.
(ii) The modification of the terms of a Loan, waiver of Borrower payment delinquencies, or other settlement shall have no effect upon the treatment of the Outstanding Balance of such Loan as a Portfolio Credit Loss.
(iii) [*****].
(e) Without limiting the generality of the foregoing, Servicer for Lender, agrees to: (i) timely invoice each case Borrower for all payments required to be paid by such Borrower, which invoice may be electronic, (ii) direct each Borrower to remit such payments directly to the Lockbox, the ACH Account, or otherwise as instructed by Lender, (iii) forward to the Lockbox or arrange disbursement in accordance with the terms hereof of any amounts that should have been deposited into the Lockbox, but were not so deposited, within 2 Business Days of receiving funds from a Borrower (including any amounts that were Portfolio Credit Losses for which Lender has not been compensated pursuant to the terms of this Agreement), or, if such amounts are not accompanied by a payment coupon or otherwise are unidentifiable, as soon thereafter as practicable after they are identified as being attributable to a Loan, and promptly thereafter instruct the Mortgage bank maintaining the Lockbox to transfer such amounts to the Lender’s Designated Account, (iv) issue payment instructions to the bank maintaining the ACH Account to allocate to Lender any amounts received in the ACH Account from a Borrower and transfer such amounts to the Lender’s Designated Account within 2 Business Days of receiving funds from a Borrower or, if such funds cannot be identified as being attributable to a particular Loan, as soon thereafter as practicable after they are identified as being attributable to a Loan, and (v) maintain with respect to each Loan, complete and accurate records in accordance with customary industry practices.
(f) Lender shall own and have reasonable access to all Borrower records including, but not limited to, Loan documents, at such time and in such commercially reasonable manner as shall be serviced prior requested by Lender. Lender may utilize such records for the purposes of marketing Lender’s products and services to Borrowers as permitted by Law and the terms of the GreenSky® Program but subject to any limitations imposed by the Program Agreement(s). Notwithstanding anything herein to the Securitization Date under interim servicing arrangements as directed by contrary, since the Note A-1-1 Holder Loans are at all times the sole property of Lender, Lender shall have the unconditional right, at any time and from time to time, to take possession of the original Loan documents or other original evidence of the debt owed by any Borrower as well as all of the electronic files and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant other data relating to the Securitization Servicing Agreement; provided that servicing of such Loans, and Servicer shall promptly deliver the Master same to Lender on Lender’s request.
(g) Servicer shall not institute collection litigation with respect to a Loan without the prior express written consent of Lender, and Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees institute collection litigation unless it concludes that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination feescommercially reasonable.
(h) Each Non-Lead Securitization Note Holder, if Servicer shall pay all of its Non-Lead Securitization Note is included expenses incurred in a Securitization, shall cause connection with the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged PropertyLoans, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement which for the Non-Lead Securitization Note Holder’s pro rata share avoidance of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) each of the Indemnified Parties doubt 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisionsnot include state documentary taxes.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Servicing Agreement (GreenSky, Inc.)
Servicing. (a) Each Noteholder acknowledges and agrees thatAs a condition of purchasing a Mortgage Loan, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that Buyer may require the Master Servicer to service such Mortgage Loan as agent for Buyer for a term of [*] (the “Servicing Term”). If the Servicing Term expires with respect to any Purchased Mortgage Loan for any reason other than such Purchased Mortgage Loan no longer being subject to a Transaction hereunder, then upon written agreement of Buyer, Master Servicer shall not be obligated continue to advance monthly payments of principal or interest service the Purchased Mortgage Loan for an additional [*]. Each [*] extension period shall automatically expire without notice unless Xxxxx agrees in respect writing to any additional [*] extension period(s). Master Servicer shall service the Purchased Mortgage Loans in accordance with prudent mortgage loan servicing standards and procedures generally accepted in the mortgage banking industry and in accordance with all applicable requirements of the Notes Agencies, Requirement of Law, Applicable Requirements, and the provisions of any applicable servicing agreement.
(b) If any Mortgage Loan that is proposed to be sold on a Purchase Date is serviced by a servicer other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer (a “Servicer”), or if the servicing of any Mortgage Loan is to be transferred to a Servicer, Seller shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms provide a copy of the related Non-Lead Servicing Agreement) if Agreement and a Servicer Notice executed by such principal Servicer to Buyer prior to such Purchase Date or interest is not paid by servicing transfer date, as applicable. Each such Servicing Agreement shall be in form and substance acceptable to Buyer. In addition, Seller shall have obtained the prior written consent of Buyer for such Servicer to subservice the Mortgage Loan Borrower but shall Loans, which consent may be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, withheld in its Buyer’s sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Seller’s use of a Servicer to enforce the rights relieve Seller or Master Servicer of any Noteholder or limit the its obligations hereunder, and Seller and Master Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder remain liable under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement as if Seller or the Servicing Agreement in its capacity as the Controlling NoteholderMaster Servicer were servicing such Mortgage Loans directly.
(c) In no event may Seller shall transfer actual servicing of each Purchased Mortgage Loan, together with all of the Securitization Servicing Agreement change related Records in its possession, to Buyer’s designee and designate Buyer’s designee as the interest allocable to, or servicer in the amount MERS System upon the earliest of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each occurrence of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
a Default or Event of Default hereunder, (ii) the Note B Holder shall be entitled termination of Seller as interim servicer by Buyer pursuant to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Nonexpiration (and non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (irenewal) promptly following the Securitization of the Non-Lead Securitization NoteServicing Term, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) transfer of servicing to any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee entity approved by Xxxxx and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated assumption thereof by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amountssuch entity. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.Buyer shall
Appears in 1 contract
Samples: Master Repurchase Agreement (Finance of America Companies Inc.)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by pursuant to the Note A-1-1 Holder Interim Servicing Agreement and from and after the Securitization Date (except as otherwise set forth in Section 5(b2(e)), pursuant to the Securitization Servicing Agreement, in each case, in accordance with this Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Senior Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder Junior Noteholder acknowledges that each the Senior Note Holder Noteholder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such Holderthe Senior Noteholder, at such the Senior Note HolderNoteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement and this Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event The Controlling Noteholder (or any Junior Operating Advisor appointed by it acting on its behalf) shall exercise the Note B Holder be entitled rights and powers granted to exercise any rights of the “directing holderControlling Holder”, “Directing Certificateholder” consulting class or any analogous class “Directing Holder” (or holder similar term) under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as with respect to the Controlling NoteholderMortgage Loan.
(c) The Securitization Servicing Agreement shall contain (i) market servicing and reporting provisions (including the Asset Status Report for all Major Decisions) and (ii) a servicing standard substantially similar to the Servicing Standard. In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder Junior Noteholder or materially increase the Controlling Junior Noteholder’s obligations or materially decrease the Controlling Junior Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect hereunder. The Securitization Servicing Agreement shall require the Controlling Noteholder’s Master Servicer and Special Servicer to AGREEMENT BETWEEN NOTEHOLDERS 57199.57/ The Bancorp., Inc. Portfolio service the Mortgage Loan in accordance with the terms of this Agreement, including the rights of the Junior Noteholder hereunder. The Senior Noteholder will promptly deliver an executed version of the Securitization Servicing Agreement to the Junior Noteholder following the Securitization of the Senior Note.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) if an event of default under the Securitization Servicing Agreement has occurred (A) with respect to the Master Servicer under the Securitization Servicing Agreement that affects a Noteholder or any class of commercial mortgage securities backed by a Note or a participation interest in a Note, and the Master Servicer is not otherwise terminated under the Securitization Servicing Agreement, then the Junior Noteholder or its designees (if the Junior Noteholder is the Controlling Noteholder) shall be entitled to direct the Master Servicer to appoint a sub-servicer solely with respect to the Mortgage Loan (or if the Mortgage Loan is currently being sub-serviced, to replace the current sub-servicer, but only if such original sub-servicer is in default under the related sub-servicing agreement); and (B) the appointment (or replacement) of a sub-servicer with respect to the Mortgage Loan, as contemplated in clause (A) above, will in any event be subject to written confirmation from each Rating Agency that such appointment would not, in and of itself, cause a downgrade, qualification or withdrawal of the then-current ratings assigned to the securities issued in connection with any Securitization;
(ii) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders in accordance with Sections 3 and 4 hereof on the “master servicer remittance date” under the Securitization Servicing Agreement;
(iiiii) the Note B Holder Junior Noteholder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower borrower or the Mortgaged Property as such Person the Junior Noteholder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Securitization Servicing Agreement Trust that includes other Notes but not limited to standard CREFC® reports, provided that if an interest in the Junior Note B or the Note B Holder Junior Noteholder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder Junior Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iiiiv) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(ivv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder Junior Noteholder if such amendment would materially and adversely AGREEMENT BETWEEN NOTEHOLDERS 57199.57/ The Bancorp., Inc. Portfolio affect the Mortgage Loan or the Note B HolderJunior Noteholder’s rights with respect theretothereto (as determined by the Junior Noteholder).
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Senior Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder Senior Noteholder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement mutually agreeable to the Senior Noteholder and the Junior Noteholder that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B HolderJunior Noteholder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder Senior Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer Approved Servicer appointed by Note A-1-1 Holder the Senior Noteholder with the consent of the Junior Noteholder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Agreement Between Noteholders (Morgan Stanley Capital I Trust 2017-H1)
Servicing. (a) Each Noteholder acknowledges The Bank will exercise the same care in making and agrees thatin handling the Loan as the Bank exercises with respect to loans in which no participations are granted. All moneys received by the Bank under the Loan shall be held by the Bank as trustee for the Participant to be disbursed in accordance with Section 2 above. Except as expressly provided herein, the Bank does not assume any other duties or responsibility.
(b) The Bank may make such inspections of the mortgaged properties from time to time in accordance with its customary practices. The Bank shall notify the Participant at least three Business Days prior to any such inspection such that representatives of the Participant can, at their own expense, accompany the Bank on any such inspection. Any written report prepared by or on behalf of the Bank in connection with an inspection shall be promptly furnished to the Participant. In no event shall the Bank be obligated to take any action to effect repairs and correct any deficient structural, environmental or physical conditions on any of the mortgaged properties.
(c) The Bank shall promptly furnish to the Participant copies of all quarterly and annual financial statements received from the Borrower. At any time that the Bank recalculates the Collateral Value, the Bank shall promptly furnish to the Participant the results of its determination. In the event that the Participant requests that the Bank recalculate the Collateral Value, the Bank shall perform such recalculation, provided, however, that the Bank shall not be obligated to recalculate the Collateral Value more than once every two months. In addition, upon the request of the Participant, the Bank shall also furnish to the Participant, at the Participant's cost, such other information within the Bank's possession relating to the Loan, any Advance or a mortgaged property as the Participant may from time to time reasonably request.
(d) To the extent there occurs an Event of Default under any Mortgage or the Note, the Participant shall assume the servicing of the Loan and shall complete an asset audit containing a discussion of the economics of the Loan and the related mortgaged property and a recommended course of action for the Loan within 10 days of receiving notice from the Bank that such a default has occurred unless such default is cured prior thereto. The results of any asset audit shall be put into a concise memorandum format by the Participant and forwarded, together with a copy of all documents prepared by or on behalf of the Participant in connection with such asset audit, to the Bank. The cost of such asset audit (the "Asset Audit Expense") will be borne by Participant, subject to reimbursement in each case accordance with Section 2 above. To the extent that Participant is not fully reimbursed for an Asset Audit Expense within thirty (30) days following the incurrence of such expense pursuant to distributions under Section 2, then the Bank shall promptly reimburse the Participant for fifty percent (50%) of the applicable Asset Audit Expense, subject to reimbursement in accordance with Section 2.
(e) In the event that the Bank agrees with the recommendations of the Participant set forth in the asset audit, or in the event that the Bank does not object to such recommendations within ten (10) days following receipt of the asset audit, the Participant shall, in the name of the Bank, implement the course of action set forth in the approved (or deemed approved) asset audit. Prior to commencing the pursuit of such remedies, however, the Participant shall instruct outside counsel acceptable to the terms Bank to review the documents evidencing and securing the Loan for enforceability, the effect of any laws affecting remedies (including, without limitation, election of remedies doctrines, anti-deficiency rules and single action rules) and any technical defaults, and, subject to outside counsel's recommendations and findings regarding state laws affecting remedies, commence enforcing such agreed upon remedies. In the event the Bank disagrees with the recommendations of the Participant set forth in the asset audit and if the Bank and the Participant are unable to reach an agreement as to the course of action to be taken within thirty (30) days following delivery of the original asset audit, the Participant shall have the right to accelerate the Loan and commence foreclosure proceedings under any Mortgage or Mortgages, provided, however, that no foreclosure or similar proceeding shall be completed and no deed-in-lieu of foreclosure shall be accepted unless the Participant has previously obtained an updated phase I environmental study (and phase II if necessary) with respect to the property or properties subject to such foreclosure action which is reasonably acceptable to the Bank. In connection with any foreclosure proceeding or any other action taken by the Participant pursuant to the first sentence of this paragraph (e), the Bank shall cooperate with the Participant so as to enable the Participant to accelerate the Loan and legally commence foreclosure proceedings or take such other agreed upon actions, whether through the execution and delivery of a limited power of attorney or otherwise. Notwithstanding anything herein to the contrary, in the event that the Participant has defaulted in any of its obligations under this Agreement beyond any applicable grace period, including, without limitation, failing to deliver an asset audit in accordance with this Section, all decisions as to the election and pursuit of remedies shall belong to the Bank. In no event shall any other remedies be pursued without the written consent of the Bank, which consent shall not be unreasonably withheld or delayed.
(f) Except as otherwise provided in this Agreement, the Mortgage Bank reserves the sole right and responsibility to enforce the obligations of the Borrower and any other entity obligated in respect of the Loan, and may, in its sole discretion, and shall have the sole and exclusive right to (i) agree to any modification of any of the terms of the Loan shall be serviced or the Note or any other agreement or instrument evidencing, securing or otherwise relating to the Loan, (ii) waive any of such terms or give or withhold consents or approvals to any action or failure to act by the Borrower or any such other agreement or instrument and (iii) exercise or refrain from exercising, or waive, any rights or powers the Bank may have in respect thereof, provided that (x) prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date agreeing to any such amendment or waiver (except as otherwise set forth in Section 5(b)clause (y) below), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer Bank shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate consult with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reportsParticipant, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect Bank and the Participant disagree, the decision of the Bank shall be final and conclusive and (y) no amendment or waiver shall increase the Junior Participation or subject the Participant to each respective Note are insufficient to cover such Servicing Advances or any additional trust fund expensesobligation, (A) reduce the Non-Lead Master Servicer will be required to, promptly following notice from principal of the Master Servicer Junior Participation or the Special Servicerrate of interest on the Note, pay increase the amount of the Commitment, modify the eighty (80%) percent loan to value requirement set forth in the Credit Agreement, postpone the date fixed for payment of principal of or reimburse interest on the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, Junior Participation or the Lead Securitization Trust, as applicable, out of general funds in the collection account (Note or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator otherwise modify or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses grant a waiver with respect to the Mortgage Loan) by Loan or any document relating thereto in a manner which would materially adversely affect the Non-Lead Securitization Trust, against any Participant's rights thereunder or hereunder without the prior written consent of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisionsParticipant.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(jg) In the event any filing that the Participant is required servicing the Loan as contemplated by paragraphs (d) and (e) above of this Section 4, the Participant will exercise the same care in servicing the Loan as the Participant exercises with respect to loans held by the Participant for its own account. All moneys received by the Participant under or in respect of the Loan shall be held by the Participant as trustee for the Bank and shall be immediately remitted to the Bank to be disbursed in accordance with Section 2 above. Except as expressly provided herein, the Participant does not assume any other duties or responsibilities.
(h) The Bank shall maintain customary books and records in respect of the Loan in accordance with its standard practices. Such books and records shall be made available for copying and inspection by the Participant at the Participant's cost and expenses during normal business hours upon not less than three Business Days' prior written notice. The Bank and the Participant shall notify each other as to any Non-Lead Depositor material default under the related Lead Securitization Servicing Agreement Loan which comes to such party's attention or any other matter which in order to comply with the Non-Lead Depositor’s requirements under Bank's or the Securities Exchange Act of 1934, as amended, Participant's respective judgment might adversely affect the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with parties' respective interests hereunder or any such filingdocuments relating thereto.
Appears in 1 contract
Samples: Loan Participation Agreement (Wellsford Real Properties Inc)
Servicing. (a) As a condition of purchasing a Mortgage Loan, Buyer may require the Master Servicer to service such Mortgage Loan as agent for Buyer for a term of [***] (the “Servicing Term”). If the Servicing Term expires with respect to any Purchased Mortgage Loan for any reason other than such Purchased Mortgage Loan no longer being subject to a Transaction hereunder, then upon written agreement of Buyer, Master Servicer shall continue to service the Purchased Mortgage Loan for an additional [***]. Each Noteholder acknowledges [***] extension period shall automatically expire without notice unless Buyer agrees in writing to any additional [***] extension period(s). Master Servicer shall service the Purchased Mortgage Loans in accordance with prudent mortgage loan servicing standards and agrees thatprocedures generally accepted in the mortgage banking industry and in accordance with all applicable requirements of the Agencies, subject Requirement of Law, Applicable Requirements, and the provisions of any applicable servicing agreement.
(b) If any Mortgage Loan that is proposed to be sold on a Purchase Date is serviced by a servicer other than the Master Servicer (a “Servicer”), or if the servicing of any Mortgage Loan is to be transferred to a Servicer, Seller shall provide a copy of the related Servicing Agreement and a Servicer Notice executed by such Servicer to Buyer prior to such Purchase Date or servicing transfer date, as applicable. Each such Servicing Agreement shall be in form and substance acceptable to Buyer. In addition, Seller shall have obtained the prior written consent of Buyer for such Servicer to subservice the Mortgage Loans, which consent may be withheld in Buyer’s sole discretion. In no event shall Seller’s use of a Servicer relieve Seller or Master Servicer of its obligations hereunder, and Seller and Master Servicer shall remain liable under this Agreement as if Seller or Master Servicer were servicing such Mortgage Loans directly.
(c) Seller shall transfer actual servicing of each case Purchased Mortgage Loan, together with all of the related Records in its possession, to Buyer’s designee and designate Buyer’s designee as the terms servicer in the MERS System upon the earliest of (i) the occurrence of a Default or Event of Default hereunder, (ii) the termination of Seller as interim servicer by Buyer pursuant to this Agreement, (iii) the expiration (and non-renewal) of the Servicing Term, or (iv) transfer of servicing to any entity approved by Buyer and the assumption thereof by such entity. Buyer shall have the right to terminate Seller and/or Master Servicer as interim servicer of any of the Purchased Mortgage Loan Loans, which right shall be serviced prior to exercisable at any time in Buyer’s sole discretion, upon written notice. Seller’s and/or Master Servicer’s transfer of the Securitization Date Records and servicing under interim this Section shall be in accordance with customary standards in the industry and such transfer shall include the transfer of the gross amount of all escrows held for the related mortgagors (without reduction for unreimbursed advances or “negative escrows”).
(d) During the period Seller and/or Master Servicer is servicing arrangements the Purchased Mortgage Loans as directed by agent for Buyer, Seller and/or Master Servicer agrees that Buyer is the Note A-1-1 Holder owner of the related Credit Files and from Records and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Seller and/or Master Servicer shall not be obligated at all times maintain and safeguard and cause the Servicer to advance monthly payments of principal maintain and safeguard the Credit File and Records for the Purchased Mortgage Loans (including photocopies or interest in respect images of the Notes other than documents delivered to Buyer), and accurate and complete records of its servicing of the Notes included Purchased Mortgage Loan; Seller’s possession of the Credit Files and Records being for the sole purpose of servicing such Purchased Mortgage Loan and such retention and possession by Seller and/or Master Servicer being in the Lead Securitization a custodial capacity only.
(and each Non-Lead e) At Buyer’s request, Seller and/or Master Servicer shall promptly deliver to Buyer reports regarding the status of any Purchased Mortgage Loan being serviced by Seller, which reports shall include, but shall not be limited to, a description of any default thereunder for more than [***] or such other circumstances that could cause a material adverse effect on such Purchased Mortgage Loan, Buyer’s or its designee’s title to such Purchased Mortgage Loan or the collateral securing such Purchased Mortgage Loan; Seller and/or Master Servicer may be required to advance monthly payments of principal and interest on deliver such reports until the applicable Non-Lead Securitization Note pursuant to the terms repurchase of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Purchased Mortgage Loan Borrower but by Seller. Seller and/or Master Servicer shall be obligated to advance delinquent real estate taxes, insurance premiums immediately notify Buyer if it becomes aware of any payment default that occurs under the Purchased Mortgage Loan or any default under any Servicing Agreement that would materially and other expenses related to the maintenance adversely affect any Purchased Mortgage Loan subject thereto.
(f) Seller and/or Master Servicer shall release its custody of the Mortgaged Property and maintenance and enforcement contents of any Credit File or Mortgage File only (i) in accordance with the written instructions of Buyer, (ii) upon the consent of Buyer when such release is required as incidental to Seller’s and/or Master Servicer’s servicing of the lien Purchased Mortgage Loan, or (iii) as required by any applicable Requirement of Law.
(g) Buyer reserves the right to appoint a successor servicer at any time to service any Purchased Mortgage Loan (each a “Successor Servicer”) after the expiration of the Mortgage thereon, subject to Servicing Term or upon the terms occurrence and during the continuation of an Event of Default or a default or event of default (howsoever defined) under the Securitization Servicing Agreement. The Note B Holder acknowledges If Buyer elects to make such an appointment due to a Default or Event of Default, Seller shall be assessed all costs and expenses incurred by Buyer associated with transferring the servicing of the Purchased Mortgage Loans to the Successor Servicer. In the event of such an appointment, Seller and/or Master Servicer shall perform all acts and take all action so that each Senior Note Holder may electany part of the Credit File and related Records held by Seller, together with all funds in its sole discretionthe Collection Account and other receipts relating to such Purchased Mortgage Loan, are promptly delivered to include the related Senior Note in a Securitization Successor Servicer, and agrees that it will, subject to Section 24, shall otherwise reasonably cooperate with Buyer in effectuating such Holdertransfer. Seller and/or Master Servicer shall have no claim for lost servicing income, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special lost profits or other damages if Buyer appoints a Successor Servicer hereunder and the Trustee under servicing fee is reduced or eliminated.
(h) For the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the avoidance of doubt, neither Seller nor Master Servicer and the Special Servicer with respect retains any economic rights to the servicing of the Purchased Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, Loans provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) Seller and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect continue to service the Purchased Mortgage Loans hereunder as part of its Obligations hereunder. As such, Seller and/or Master Servicer expressly acknowledges that the Purchased Mortgage Loans are sold to Buyer on a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder“servicing released” basis.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Master Repurchase Agreement (Finance of America Companies Inc.)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement and in accordance with this Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) A if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior the Note A Holder may elect, in its sole discretion, to include the related Senior Note A in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such the Note A Holder, at such Senior the Note A Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, the Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with and consent with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this the Servicing Agreement and the Securitization Servicing this Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the such Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer be required to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event The Controlling Noteholder (or any Controlling Noteholder Representative appointed by it acting on its behalf) shall exercise the Note B Holder be entitled rights and powers granted to exercise any rights of the “directing holderControlling Holder”, “Directing Certificateholder” consulting class or any analogous class “Directing Holder” (or holder similar term) under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as with respect to the Controlling NoteholderMortgage Loan.
(c) The Servicing Agreement shall contain the Servicing Standard (which shall require, among other things, that each Servicer, in servicing the Mortgage Loan, must take into account the interests of each Noteholder, taking into account that Note B is junior to Note A). In no event may the Securitization Servicing Agreement change the interest or principal allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 B Holder or materially increase the Controlling NoteholderNote B Holder’s obligations or materially decrease the Controlling NoteholderNote B Holder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders in accordance with Sections 3 and 4 hereof on the “master servicer remittance date” under the Securitization Servicing AgreementMaster Servicer Remittance Date;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person the Note B Holder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Securitization Servicing Agreement Trust that includes other Notes including but not limited to standard CREFC® reports, provided subject to limitations or information that if an interest in Note B or the may be made available to a Note B Holder that is held by the a Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder (not to be unreasonably withheld) if such amendment would materially and adversely affect the Mortgage Loan or the rights of the Note B Holder’s rights Holder with respect thereto;
(v) provide that any inconsistency between the Servicing Agreement and this Agreement shall be governed by and determined in accordance with the terms of this Agreement; and
(vi) recognize the respective rights and obligations of the Noteholders hereunder, including with respect to the making of payment to the Noteholders and the rights of the Noteholders to approve matters and make decisions hereunder.
(e) Notwithstanding anything to the contrary contained in this Agreement, any Any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 A is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 A Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement mutually agreeable to the Note A Holder and the Note B Holder that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, (x) the Note A-1-1 A Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, and (y) the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by the Note A-1-1 A Holder with the consent of the Note B Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Co Lender Agreement (UBS Commercial Mortgage Trust 2019-C18)
Servicing. (a1) Pursuant to the Servicing Agreements, each Seller, each Trust Subsidiary and the REO Entity, respectively have contracted with the Servicers to service the Contributed Mortgage Loans and Contributed REO Properties consistent with the degree of skill and care that each Seller customarily requires with respect to similar Mortgage Loans and REO Properties owned or managed by it and in accordance with Servicing Guidelines. Each Seller and Servicers shall (i) comply with all applicable federal, state and local laws and regulations, (ii) maintain all state and federal licenses necessary for it to perform its servicing responsibilities hereunder and (iii) not impair the rights of Administrative Agent or Buyers in any Contributed Mortgage Loans and Contributed REO Properties or any payment thereunder. Administrative Agent may terminate the servicing of any Contributed Mortgage Loans or Contributed REO Properties with the then‑existing servicer in accordance with Section 12(a)(5) hereof.
(2) Sellers shall and shall cause the Servicers to hold or cause to be held all escrow funds collected by each Seller and Servicers with respect to any Contributed Mortgage Loans and Contributed REO Properties in trust accounts and shall apply the same for the purposes for which such funds were collected.
(3) Sellers shall and shall cause the Servicers to deposit all collections received by the Servicers on the Contributed Mortgage Loans and Contributed REO Properties in the Collection Account.
(4) Each Noteholder acknowledges Seller shall provide to Administrative Agent (i) a Servicer Notice addressed to and agrees thatagreed to by each Servicer, subject in each case to the terms advising Servicers of this Agreementsuch matters as Administrative Agent may reasonably request, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed including, without limitation, recognition by the Note A-1-1 Holder Servicers of Administrative Agent’s and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or Buyers’ interest in respect of the Notes other than the Notes included in the Lead Securitization (such Contributed Mortgage Loans and Contributed REO Properties and each Non-Lead Master Servicer shall be required to advance monthly payments Servicer’s agreement that upon receipt of principal and interest on notice of an Event of Default from Administrative Agent, it will follow the applicable Non-Lead Securitization Note pursuant to the terms instructions of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer Administrative Agent with respect to the servicing of the Contributed Mortgage Loan in accordance with this Agreement Loans and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer Contributed REO Properties and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights related Income with respect thereto.
(e5) Notwithstanding anything Upon prior written notice following the occurrence and during the continuance of an Event of Default, Administrative Agent shall have the right to immediately terminate any Servicer’s right to service the contrary contained in this Agreement, Contributed Mortgage Loans and Contributed REO Properties without payment of any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer penalty or the Special Servicer, as applicable, as set forth in termination fee under the Servicing Agreement. Upon receipt of such notice, each Seller and the Servicers shall cooperate in transferring the applicable servicing of the Contributed Mortgage Loans and Contributed REO Properties to a successor servicer appointed by Administrative Agent on behalf Buyers in its sole discretion.
(f6) At If any time after Seller should discover that, for any reason whatsoever, any Seller or any Person responsible to such Seller for managing or servicing any such Contributed Mortgage Loan or Contributed REO Property has failed to perform fully such Seller’s obligations under the Securitization Date that the Note A-1-1 is no longer subject to the provisions Program Agreements or any of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean obligations of such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect Persons with respect to the Contributed Mortgage LoanLoans and Contributed REO Properties, providedsuch Seller shall promptly notify Administrative Agent.
(7) For the avoidance of doubt, however, that each Seller retains no economic rights to the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Contributed Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder Loans and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder Contributed REO Properties; provided that each Seller shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement Servicers to contain provisions continue to service the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (Contributed Mortgage Loans and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration Contributed REO Properties hereunder as part of the Notes and the Mortgaged PropertyObligations hereunder. As such, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event each Seller expressly acknowledges that the funds received with respect Contributed Mortgage Loans and Contributed REO Properties are transferred to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the a Trust Subsidiary on a “servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holderreleased” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisionsbasis.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Master Repurchase Agreement (Altisource Residential Corp)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case Pursuant to the terms of this Servicing Agreement, the Mortgage Loan shall be serviced prior Debtor has contracted with General Electric Capital Corporation ("GECC") to act as servicer to manage, collect and administer each of the Receivables. Until such time as GECC is terminated as servicer under the Servicing Agreement, references to the Securitization Date Servicer herein shall refer to GECC as servicer under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include In the related Senior Note in event of a Securitization and agrees that it will, subject Servicer Event of Default pursuant to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions 8.01 of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall , the Servicing Agreement require Debtor shall, upon the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights written direction of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable toDeal Agent, or the amount of any payments due tomay, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without with the consent of the Note B Holder if such amendment would materially and adversely affect Deal Agent, terminate GECC as Servicer thereunder. The Deal Agent shall also have the Mortgage Loan or right to remove the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to Servicer for cause, which shall include the contrary contained in this Agreement, material breach of any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in covenant under the Servicing Agreement.
(f) At any time after . Upon the Securitization Date that the Note A-1-1 is no longer subject to the provisions termination of GECC as servicer of the Securitization Receivables pursuant to either Section 8.01 or Section 9.02 of the Servicing Agreement, the Note A-1-1 Holder Deal Agent, shall (i) cause have the Mortgage Loan right to be serviced pursuant to appoint a successor servicer and the Debtor shall enter into a servicing agreement that contains servicing provisions which are the same as or more favorable with such successor servicer in form and substance acceptable to the NonDeal Agent, with such successor servicer acceptable to the Deal Agent at such time. Such appointment shall be subject to the consent of the Debtor, which consent shall not be unreasonably withheld; PROVIDED, HOWEVER, that if a Termination Event, a Potential Termination Event, Wind-Controlling Note Holders Down Event, Potential Wind-Down Event, Amortization Event, Potential Amortization Event or Incipient Coverage Shortfall, shall have occurred and Note B Holder, in substance, to those in be continuing the Securitization Servicing Agreement, consent of the Debtor shall not be required. Such servicing agreement shall specify the duties and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreementobligations of such successor servicer, and all references herein to the “Securitization Servicing Agreement” Servicer shall mean be deemed to refer to such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisionssuccessor servicer.
(gb) If There shall be established on the Note B Holder exercises its purchase option Closing Date and maintained, for the benefit of the Secured Party, in accordance the trust department of a bank chosen by the Collateral Agent (which bank shall be Bankers Trust Company or such other bank or trust company as may be appointed by the Collateral Agent from time to time with Section 12 hereofthe consent of the Debtor, upon which consent shall not be unreasonably withheld), a segregated account (the Mortgage Loan being transferred "COLLECTION ACCOUNT"), bearing a designation clearly indicating that all of the funds deposited therein are held for the benefit of the Secured Party. Funds on deposit in the Collection Account (other than investment earnings) shall be invested by the Collateral Agent at the direction of the Debtor in Eligible Investments that will mature so that such funds will be available prior to the Note B Holdernext succeeding Remittance Date, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent except that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses funds representing Collections with respect to a succeeding Collection Period, such Eligible Investments may mature so that such funds will be available no later than the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items Business Day prior to the extent of its pro rata share of Remittance Date for such Indemnified Items, and to the extent amounts Collection Period. Any funds on deposit in the Whole Loan Custodial Collection Account that are allocated to be so invested shall be invested solely in Eligible Investments. On each Remittance Date, all interest and earnings (net of losses and investment expenses) on funds on deposit in the Collection Account shall be available to make any payments required hereunder and shall be distributed pursuant to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, priorities set forth in Section 5.1.
(c) The Debtor shall cause GECC as servicer under the Non-Lead Master Servicer will be required Servicing Agreement to reimburse each deposit all Collections in the Collection Account no later than ten (10) Business Days after the end of the applicable Indemnified Parties for related Collection Period (LESS the Non-Lead Securitization Note’s pro rata share fees and expenses of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master GECC as Servicer will be required to deliver to the Trusteewhich GECC, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under Agreement, is permitted to withhold from amounts remitted to the Non-Lead Servicing Agreement; and
(v) Debtor or the Master ServicerCollateral Agent), but in any event, on or before the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries 14th day of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to month following the related Non-Lead Securitization Note HolderCollection Period.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Security Agreement (First Investors Financial Services Group Inc)
Servicing. (a) Each Noteholder acknowledges Pursuant to the Servicing Agreement, the Debtor has contracted with Auto Lenders Acceptance Corporation ("ALAC") to act as servicer to manage, collect and agrees thatadminister each of the Receivables. Until such time as ALAC is terminated as servicer under the Servicing Agreement, subject in each case references to the Servicer herein shall refer to ALAC as servicer under the terms of this the Servicing Agreement. In the event of a Servicer Event of Default pursuant to Section 5.01 of the Servicing Agreement, the Mortgage Loan Debtor, shall upon the written direction of the Surety Bond Provider, or may, with the consent of the Surety Bond Provider, terminate ALAC as Servicer thereunder, but in any event shall notify Moody's and S&P of such Servicer Event of Default. Upon xxx xxxmination of ALAC as servicer of the Receivables pursuant to Section 5.01 of the Servicing Agreement, a successor servicer shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note appointed pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” Servicer shall mean be deemed to refer to such subsequent servicing agreement; providedsuccessor servicer.
(b) There shall be established on the Closing Date and maintained, howeverfor the benefit of the Secured Parties, in the trust department of the Collateral Agent, a segregated account (the "COLLECTION ACCOUNT"), bearing a desig nation clearly indicating that until all of the funds deposited therein are held for the benefit of the Secured Parties. Funds on deposit in the Collection Account (other than investment earnings) shall be invested by the Collat eral Agent at the direction of the Debtor in Eligible Investments that will mature so that such funds will be available prior to the next succeeding Remittance Date, except that in the case of funds representing Collections with respect to a replacement servicing agreement has been entered intosucceeding Collection Period, such Eligible Investments may mature so that such funds will be available no later than the Note A-1-1 Holder shall cause Business Day prior to the Mortgage Loan Remittance Date for such Collection Period. Any funds on deposit in the Collection Account to be serviced so invested shall be invested solely in accordance with Eligible Investments. On each Remittance Date, all interest and earnings (net of losses and investment expenses) on funds on deposit in the servicing provisions Collection Account shall be available to make any payments required hereunder and shall be distributed pursuant to the priorities set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that Section 5.1.
(c) The Debtor shall cause the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that deposit all Collections in the event that Collection Account no later than the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) close of business on the Non-Lead Master Servicer will be required to, promptly Business Day following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) receipt thereof by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing."
Appears in 1 contract
Samples: Security Agreement (First Investors Financial Services Group Inc)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject as further provided in each case to the terms Section 5 of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder Each Noteholder acknowledges that each Senior Note Holder other Noteholder may elect, in its sole discretion, to include the related Senior its Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, a securitizing Noteholder at such Senior Note Holderthe securitizing Noteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, the Special Servicer Servicer, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder against another Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) The then Controlling Noteholder shall be entitled to exercise any notice and consent rights of the “directing holder,” “directing certificateholder,” “controlling class,” “controlling class representative” or any analogous class or holder under the Servicing Agreement except to the extent such Noteholder is expressly prohibited from exercising such rights under the terms of this Agreement in its capacity as the Controlling Noteholder. In no event shall the Note B A-2 Holder be entitled to exercise any rights of the “directing holder,” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the such Note B A-2 Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may The Master Servicer shall be the Securitization master servicer of the Mortgage Loan, and from time to time it (or the Trustee, to the extent provided in the Servicing Agreement) (i) shall be required to make Property Protection Advances and Administrative Advances with respect to the Mortgage Loan, subject to the terms of the Servicing Agreement change and this Agreement, and (ii) may be required to make P&I Advances on the interest allocable Lead Securitization Note, if and to the extent provided in the Servicing Agreement and this Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to reimbursement for a Property Protection Advance or Administrative Advance, first, from funds on deposit in the Collection Account or Companion Distribution Account for the Mortgage Loan that (in any case) represent amounts received on or in respect of the Mortgage Loan, and, then, in the case of Nonrecoverable Property Protection Advances or Nonrecoverable Administrative Advance, if such funds on deposit in the Collection Account or Companion Distribution Account with respect to the Mortgage Loan are insufficient, from general collections of the Lead Securitization as provided in the Servicing Agreement, as applicable, and from each Non-Lead Securitization Noteholder as provided below. The Master Servicer, the Special Servicer and the Trustee, as applicable, will be entitled to reimbursement for Advance Interest Amounts on a Property Protection Advance, Administrative Advance, a Nonrecoverable Property Protection Advance or Nonrecoverable Administrative Advance, in the manner and from the sources provided in the Servicing Agreement, including from general collections of the Lead Securitization, as applicable, and, in the case of Property Protection Advances or Administrative Advances, from general collections of each Non-Lead Securitization as provided herein. To the extent the Master Servicer, the Special Servicer or the Trustee, as applicable, obtains funds from general collections of the Lead Securitization as a reimbursement for a Nonrecoverable Property Protection Advance or Nonrecoverable Administrative Advance or any Advance Interest Amounts on a Property Protection Advance, Administrative Advance, a Nonrecoverable Property Protection Advance or Nonrecoverable Administrative Advance, each Non-Lead Securitization Noteholder shall be required to, promptly following notice from the Master Servicer, reimburse (including from general collections or any other amounts from any Non-Lead Securitization Trust) the Lead Securitization for its pro rata share of such Nonrecoverable Property Protection Advance, Nonrecoverable Administrative Advance or Advance Interest Amounts (it being understood that the pro rata share payable by each Non-Lead Securitization Noteholder under this paragraph would be determined by allocating such Nonrecoverable Property Protection Advance, Nonrecoverable Administrative Advance or Advance Interest Amount, as the case may be, first, to the Note A-2 Holder, and then, to the Note A-1 Holders, in that order). A Non-Lead Master Servicer may be required to make P&I Advances on the related Non-Lead Securitization Note, from time to time, subject to the terms of the applicable Non-Lead Servicing Agreement, the Servicing Agreement and this Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to make their own recoverability determination with respect to a P&I Advance to be made on the Lead Securitization Note based on the information that they have on hand and in accordance with the Servicing Agreement. Each Non-Lead Master Servicer, Non-Lead Special Servicer and Non-Lead Trustee, as applicable, shall be entitled to make its own recoverability determination with respect to a P&I Advance to be made on the related Non-Lead Securitization Note based on the information that it has on hand and in accordance with the related Non-Lead Servicing Agreement. The Master Servicer and the Trustee, as applicable, and each Non-Lead Master Servicer and Non-Lead Trustee, as applicable, shall be required to notify the others of the amount of any payments due toits P&I Advance within two (2) Business Days of making such advance. If the Master Servicer, the Special Servicer or the Trustee, as applicable (with respect to the Lead Securitization Note) or a Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee, as applicable (with respect to the related Non-Lead Securitization Note), determines that a proposed P&I Advance, if made, would be non-recoverable or an outstanding P&I Advance is or would be non-recoverable, or if the Master Servicer, the Special Servicer or the Trustee, as applicable, subsequently determines that a proposed P&I Advance would be non-recoverable or an outstanding P&I Advance is or would be non-recoverable, then the Master Servicer or the Trustee (as provided in the Servicing Agreement, in the case of a determination of non-recoverability by the Master Servicer, the Special Servicer or the Trustee) or any Non-Lead Master Servicer or Non-Lead Trustee (as provided in the related Non-Lead Servicing Agreement, in the case of the a determination of non-recoverability by such Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee) shall notify the Master Servicer and the Trustee, or any Non-Lead Master Servicer and any Non-Lead Trustee, as the case may be, of the other Securitizations within two (2) business days of making such determination. Each of the Master Servicer, the Trustee, the related Non-Lead Master Servicer and the related Non-Lead Trustee, as applicable, will only be entitled to reimbursement for a P&I Advance and advance interest thereon that becomes non-recoverable first from the Collection Account or Companion Distribution Account from amounts allocable to the Note B-1 Holder or Note B-2 Holder or materially increase for which such P&I Advance was made, and then, if funds are insufficient, (i) in the Controlling Noteholder’s obligations or materially decrease case of the Controlling Noteholder’s rightsLead Securitization Note, remedies or protections hereunder or otherwise adversely affect from general collections of the Controlling Noteholder’s rights hereunderLead Securitization Trust, pursuant to the terms of the Servicing Agreement and (ii) in the case of any Non-Lead Securitization Note, from general collections of the related Securitization Trust, as and to the extent provided in the related Non-Lead Servicing Agreement.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing AgreementMaster Servicer Remittance Date;
(ii) the Note B Holder Controlling Noteholder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder A-2 is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the such Note B A-2 Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Non-Lead Securitization Noteholders or the Note B A-2 Holder if such amendment would materially and adversely affect the Mortgage Loan or the rights of the Non-Lead Securitization Noteholders or the Note B Holder’s rights A-2 Holder with respect thereto; and
(v) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, a Rating Agency Confirmation shall be provided with respect to the commercial mortgage pass-through certificates issued in connection with each Non-Lead Securitization Trust to the same extent provided with respect to the commercial mortgage pass-through certificates issued in connection with the Lead Securitization.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) Each Servicer shall be required pursuant to the Servicing Agreement to service the Mortgage Loan in accordance with Accepted Servicing Practices, the terms of the Mortgage Loan Documents, the Servicing Agreement, this Agreement and applicable law, shall provide information to each Non-Lead Servicer to enable such Non-Lead Servicer to perform its servicing duties under the related Non-Lead Servicing Agreement and shall not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.
(g) At any time after the Securitization Date that the Note A-1-1 Mortgage Loan is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) Noteholders agree to cause the Mortgage Loan to be serviced by one or more servicers, each of which has been agreed upon by the Noteholders, pursuant to a servicing agreement that contains has servicing provisions which are the same as or more favorable terms substantially similar to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a any Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; , provided, further, however, that until a replacement servicing agreement is in placehas been entered into, the actual servicing of Lead Securitization Noteholder shall cause the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred serviced pursuant to the Note B Holder, the Note B Holder shall be entitled to terminate provisions of the Servicing Agreement as if such agreement were still in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the full force and effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) , by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit Servicer in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries or by any Person appointed by the Lead Securitization Noteholder that is a qualified servicer meeting the requirements of the foregoing provisionsServicing Agreement.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Agreement Between Noteholders (BBCMS Mortgage Trust 2020-C7)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to this Agreement and the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included for any Note in the Lead Securitization (and each a Non-Lead Master Servicer shall may be required to advance monthly payments of principal and interest on the applicable a Non-Lead Securitization Note included in a Non-Lead Securitization pursuant to the terms of the related Non-Lead Securitization Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing AgreementAgreement (including a determination of recoverability thereunder). The Note B Holder Each Noteholder acknowledges that each Senior Initial Note A Holder (if it is not already the trustee for a Securitization Trust) may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such Holderother Noteholder, at such Senior Note Holderother Noteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer the Certificate Administrator, any Operating Advisor, any Asset Representations Reviewer and the Trustee under the Securitization Servicing Agreement by the Depositor, and the appointment of the Special Servicer as the initial Special Servicer under the Servicing Agreement by the Depositor (subject to replacement by the Controlling Noteholder as provided herein) and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder Noteholders set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the any Servicer to enforce the rights of any Noteholder against any other Noteholder or limit the any Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder. Each Servicer shall be required pursuant to the Servicing Agreement to service the Mortgage Loan in accordance with the Accepted Servicing Practices, this Agreement, the terms of the Mortgage Loan Documents, the Servicing Agreement, any intercreditor agreement and applicable law, and shall not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.
(b) In no event No holder of any interest in any Note shall the Note B Holder be entitled to exercise any rights of the “directing holder”, “consenting or consulting party”, “controlling or consulting class”, “controlling class representative” consulting class or any analogous class or holder holder(s) of certificates under the Securitization Servicing Agreement except to that in the extent case of the Note B Holder Controlling Noteholder, such holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling NoteholderNoteholder (or the Controlling Noteholder Representative).
(c) In no event may The Master Servicer shall be the lead master servicer on the Mortgage Loan, and from time to time it (or the Trustee, to the extent provided in the Lead Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(dAgreement) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer required to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating make Property Protection Advances with respect to the Mortgage Loan, subject to the Mortgage Loan Borrower or terms of the Mortgaged Property as such Person Lead Securitization Servicing Agreement and this Agreement, and (ii) may reasonably request be required to make principal and interest Advances on any Note in the possession ofLead Securitization, or collected or known by, if and to the extent provided in the Lead Securitization Servicing Agreement and this Agreement. The Master Servicer or Trustee shall be required to provide written notice to each Non-Lead Master Servicer and each Non-Lead Trustee of any principal and interest Advance it has made with respect to the Lead Securitization Note within two (2) Business Days of making such Advance. The Master Servicer, the Special Servicer relating to and the Mortgage Loan andTrustee, in any eventas applicable, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not will be entitled to receive reimbursement for a Property Protection Advance, first from funds on deposit in each of the Asset Status Report Collection Account and the Companion Distribution Account that (in any case) represent amounts received on or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under Mortgage Loan in the manner provided in the Lead Securitization Servicing Agreement, and then, if such Property Protection Advance is a Nonrecoverable Advance, and if such funds on deposit in the Collection Account and Companion Distribution Account are insufficient, from general collections of the Lead Securitization as provided in the Lead Securitization Servicing Agreement and may directly enforce such rights; and
(iv) from general collections of each Non-Lead Securitization as provided below. The Master Servicer, the Special Servicer and the Trustee, as applicable, will be entitled to reimbursement for Advance Interest Amounts on a Property Protection Advance, in the manner and from the sources provided in the Lead Securitization Servicing Agreement may not be amended without the consent Agreement, including from general collections of the Note B Holder if such amendment would materially and adversely affect Lead Securitization and, in the case of Property Protection Advances that are Nonrecoverable Advances, from general collections of each Non-Lead Securitization as provided below. Notwithstanding the foregoing, to the extent the Master Servicer, the Special Servicer or the Trustee, as applicable, obtains funds from general collections of the Lead Securitization unrelated to the Mortgage Loan or the Note B Holder’s rights Property as a reimbursement for a Property Protection Advance that is a Nonrecoverable Advance or any Advance Interest Amounts on such a Nonrecoverable Advance, the Non-Lead Securitization Noteholder (including from general collections or any other amounts from the Non-Lead Securitization Trust) shall be required to, promptly following notice from the Master Servicer, reimburse the Lead Securitization for its pro rata share of such Nonrecoverable Advance or Advance Interest Amounts. If the Master Servicer determines that a proposed principal and interest Advance with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant Lead Securitization Note or Property Protection Advance with respect to the terms hereof Mortgage Loan, if made, or any outstanding principal and interest Advance or Property Protection Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance (as defined in the Lead Securitization Servicing Agreement), the Master Servicer shall provide the Non-Lead Master Servicer written notice of such determination promptly after such determination was 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. In addition, a Non-Lead Securitization Noteholder whose Non-Lead Securitization Note has been included in a Non-Lead Securitization Trust shall be performed by required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Lead Securitization for the Non-Lead Securitization Noteholder’s pro rata share of any Trust Fund Expenses with respect to the Mortgage Loan or the Property, any other fees, costs or expenses incurred in connection with the servicing and administration of the Mortgage Loan and allocable to the Non-Lead Securitization Noteholders pursuant to this Agreement and as to which the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Depositor, as applicable, as set forth is entitled to be reimbursed pursuant to the Lead Securitization Servicing Agreement, and any fees, costs or expenses related to obtaining a Rating Agency Confirmation and allocated to the Non-Lead Securitization Noteholders, in each case to the extent amounts on deposit in the Companion Distribution Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts (which such reimbursement shall be made from general collections or any other amounts from such Non-Lead Securitization Trust). If a Non-Lead Securitization Note has been included in a Non-Lead Securitization, the related Non-Lead Securitization Noteholder agrees to indemnify (as and to the same extent the Lead Securitization Trust is required to indemnify each of the Indemnified Parties) against any Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Companion Distribution Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Securitization Noteholder shall be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse each of the applicable Indemnified Parties for its pro rata share of the insufficiency from general collections or any other amounts from such Non-Lead Securitization Trust. The Non-Lead Master Servicer may be required to make principal and interest Advances on a Non-Lead Securitization Note included in a Non-Lead Securitization, from time to time, subject to the terms of the related Non-Lead Securitization Servicing Agreement, the Lead Securitization Servicing Agreement and this Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to make their own recoverability determination with respect to a principal and interest Advance to be made on the Lead Securitization Note based on the information that they have on hand and in accordance with the Lead Securitization Servicing Agreement. The Non-Lead Master Servicer and the Non-Lead Special Servicer and the Non-Lead Trustee, as applicable, shall be entitled to make their own recoverability determination with respect to a principal and interest Advance to be made on a Non-Lead Securitization Note based on the information that they have on hand and in accordance with the Non-Lead Securitization Servicing Agreement. The Master Servicer and the Trustee, as applicable, and the Non-Lead Master Servicer or the Non-Lead Trustee shall be required to notify each other servicer and trustee with respect to a Securitization of the amount of its principal and interest Advance within two (2) Business Days of making such Advance. If the Master Servicer, the Special Servicer or the Trustee, as applicable (with respect to a Note in the Lead Securitization) or the Non-Lead Master Servicer, the Non-Lead Special Servicer or the Non-Lead Trustee, as applicable (with respect to a Non-Lead Securitization Note), determines that a proposed principal and interest Advance, if made, would be non-recoverable or an outstanding principal and interest Advance is or would be non-recoverable, or if the Master Servicer, the Special Servicer or the Trustee, as applicable, subsequently determines that a proposed Property Protection Advance would be non-recoverable or an outstanding Property Protection Advance is or would be non-recoverable, then the Master Servicer or the Trustee (as provided in the Lead Securitization Servicing Agreement, in the case of a determination of non-recoverability by the Master Servicer, the Special Servicer or the Trustee) or the Non-Lead Master Servicer or the Non-Lead Trustee (as provided in the Non-Lead Securitization Servicing Agreement, in the case of a determination of non-recoverability by the Non-Lead Master Servicer, the Non-Lead Special Servicer or the Non-Lead Trustee) shall notify the Master Servicer and the Trustee, or the Non-Lead Master Servicer and the Non-Lead Trustee, as the case may be, within two (2) Business Days of making such determination. Each of the Master Servicer, the Trustee, the Non-Lead Master Servicer and the Non-Lead Trustee, as applicable, will only be entitled to reimbursement for a principal and interest Advance first, from the Collection Account or the Companion Distribution Account from amounts allocable to the Note for which such principal and interest Advance was made, and then, if funds are insufficient, (i) in the case of a Note in the Lead Securitization, from general collections of the Lead Securitization Trust, as and to the extent provided in the Lead Securitization Servicing Agreement and (ii) in the case of a Non-Lead Securitization Note, from general collections of the Non-Lead Securitization Trust, as and to the extent provided in the Non-Lead Securitization Servicing Agreement.
(fd) At any time prior to the Lead Securitization Date, the Noteholder of the Lead Securitization Note shall cause the Mortgage Loan to be serviced in accordance with this Agreement and the Interim Servicing Agreement. Notwithstanding anything herein to the contrary, at all times while the Mortgage Loan is required to be serviced pursuant to the Interim Servicing Agreement and Xxxxx Fargo is the Servicer thereunder, the Servicer (x) shall only be obligated to seek and/or take direction from SMC (and only for so long as SMC is the holder of the SMC A Note and is acting as Initial Agent, and if SMC ceases to be the holder of the SMC A Note or the Initial Agent, the Mortgage Loan shall cease to be serviced pursuant to the Interim Servicing Agreement) and (y) shall not have any duty or obligation to seek and/or take direction from any other person (other than the Initial Agent), including, without limitation, the Controlling Noteholder, the Controlling Noteholder Representative or any other Noteholder. With respect to any action that requires or contemplates the Controlling Noteholder’s, Controlling Noteholder Representative’s or any other Noteholder’s approval, consent, direction, consultation or involvement hereunder while the Mortgage Loan is required to be serviced pursuant to the Interim Servicing Agreement and Xxxxx Fargo is the Servicer thereunder, the Servicer shall only be required to directly engage and communicate with the Initial Agent and the Servicer shall have no duty, obligation or liability with respect to the requirement to consult with, or seek the consent, approval or direction of, the Controlling Noteholder, Controlling Noteholder Representative or other Noteholder. In connection with such approval, consent, direction, consultation or involvement that requires the Controlling Noteholder, the Controlling Noteholder Representative or any other Noteholder, the Initial Agent shall consult with or follow a direction from, as applicable, such Controlling Noteholder, Controlling Noteholder Representative or other Noteholder and transmit such direction or the result of such consultation to the Servicer. At any time after the Lead Securitization Date that the Lead Securitization Note A-1-1 is no longer subject to the provisions of the Lead Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Lead Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Lead Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, Loan or a Substitute Servicing Agreement; provided, however, that the Master Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agencyadvance monthly payments of principal or interest; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder Lead Securitization Noteholder and the special servicer appointed by the Controlling Noteholder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicerprovided, the Special Servicerfurther, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide however, that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notesuntil a replacement servicing agreement has been entered into, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of if a Non-Lead Securitization Note becomes the subject of an Asset Review pursuant to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.r
Appears in 1 contract
Samples: Agreement Between Noteholders (BBCMS Mortgage Trust 2024-5c31)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by pursuant to the Note A-1-1 Holder Interim Servicing Agreement and from and after the Securitization Date (except as otherwise set forth in Section 5(b2(e)), pursuant to the Securitization Servicing Agreement and, in each case, in accordance with this Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than Note A-1 (although a party designated under the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall Note A-2 PSA may be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization in respect of Note pursuant to the terms of the related Non-Lead Servicing AgreementA-2) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each a Senior Note Holder Noteholder may elect, in its sole discretion, to include the related its Senior Note in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such HolderSenior Noteholder, at such Senior Note HolderNoteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with and consent with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement and this Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Note A-1 Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer be required to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder.
(b) In no event The Controlling Noteholder (or any Controlling Noteholder Representative appointed by it acting on its behalf) shall exercise the Note B Holder be entitled rights and powers granted to exercise any rights of the “directing holderControlling Holder”, “Directing Certificateholder” consulting class or any analogous class “Directing Holder” (or holder similar term) under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as with respect to the Controlling NoteholderMortgage Loan.
(c) The Securitization Servicing Agreement shall contain the Servicing Standard. In no event may the Securitization Servicing Agreement change the interest or principal allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 B Holder or materially increase the Controlling NoteholderNote B Holder’s obligations or materially decrease the Controlling NoteholderNote B Holder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders in accordance with Sections 3 and 4 hereof on the “master servicer remittance date” under the Securitization Servicing AgreementMaster Servicer Remittance Date;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person the Note B Holder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Securitization Servicing Agreement Trust that includes other Notes, including, but not limited to standard CREFC® reports, provided subject to limitations or information that if an interest in Note B or the may be made available to a Note B Holder that is held by the a Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder (not to be unreasonably withheld) if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto;
(v) provide that any inconsistency between the Servicing Agreement and this Agreement shall be governed by and determined in accordance with the terms of this Agreement; and
(vi) recognize the respective rights and obligations of the Noteholders hereunder, including with respect to the making of payment to the Noteholders and the rights of the Noteholders to approve matters and make decisions hereunder.
(e) Notwithstanding anything to the contrary contained in this Agreement, any Any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 A-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 A-1 Holder shall (i) will cause the Mortgage Loan to be serviced pursuant to a servicing agreement mutually agreeable to the Note A-2 Holder and the Note B Holder that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that (1) if Note A-2 is in a Securitization, then Rating Agency Confirmation shall have been obtained from each Rating Agency with respect to such subsequent servicing agreement and (2) until a replacement servicing agreement has been entered into, (x) the Note A-1-1 A-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, and (y) the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by the Note A-1-1 A-1 Holder with the consent of the Note B Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If The Note A-2 PSA shall contain the Note B Holder exercises its purchase option provisions set forth in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.Schedule I.
Appears in 1 contract
Samples: Co Lender Agreement (CSAIL 2018-C14 Commercial Mortgage Trust)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case Unless otherwise agreed to among the terms of this Agreementparties hereto, the Mortgage Loan shall be serviced prior Borrower hereby appoints New Century to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder service; and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder New Century hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor covenants and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of service the Mortgage Loan in accordance with this Agreement Loans and REO Properties for an initial term, commencing on the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints first Funding Date and ending 30 days thereafter, which term shall be extendable by the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights Borrower for successive terms of one Noteholder against calendar month thereafter, until the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreementMaturity Date; provided, however, that until a replacement servicing agreement if an Event of Default has occurred and is continuing or has not been entered intocured, the Note A-1-1 Holder New Century shall cause the immediately be terminated as servicer. The Mortgage Loan to Loans and REO Properties shall be serviced in accordance with the servicing provisions set forth in of the Securitization Pooling and Servicing Agreement as if such agreement was still in full force Agreement, including the representations and effect warranties and servicing standards with respect to the prepayment charges. As part of its servicing duties, New Century shall enforce “due-on-sale” provisions to the extent permitted by law, shall administer all escrow/impound deposits and shall make all servicing advances (not including advances of delinquent principal and interest) on the Mortgage LoanLoans. The Mortgage Loans shall be serviced for a servicing fee equal to 0.50% per annum payable monthly on the then-outstanding principal balance of each Mortgage Loan (the “Servicing Fee”) and any additional servicing compensation as set forth in Section 3.18 of the Pooling and Servicing Agreement, which Servicing Fee and additional servicing compensation will be paid in accordance with the provisions of the Pooling and Servicing Agreement. Notwithstanding the foregoing, in the event an Event of Default shall occur and be continuing, New Century will no longer be servicer, unless the term of servicing is extended by the Lender in its sole discretion. In such event, Lender shall have the right to transfer such servicing to another servicer without payment of any fee to New Century; provided, however, that New Century will be entitled to all amounts owed to it in respect of its Servicing Fee up to the Servicer under date New Century is terminated as servicer. In addition, in the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained event any proceeds from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing any sale of the Mortgage Loans to a third parry in connection with a default by Borrower exceeds the amounts owed to Lender under this Loan may be performed by Agreement, the Lender will reimburse New Century for any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder unpaid servicing advances and does not have any ancillary income accrued during New Century’s period as servicer. New Century will cooperate in good faith to be performed by the service providers set forth under the Securitization Servicing Agreementeffect such servicing transfer and shall pay all costs associated with such servicing transfer. The Note A-1-1 Holder Borrower shall provide cause the Non-Controlling Note Holders Servicer to service the Mortgage Loans and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option REO Properties in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, Pooling and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity Borrower shall enforce all of the Non-Lead Master Servicer or the party designated to exercise the rights obligations of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Borrower agrees that the Lender has a first priority perfected security interest in all servicing records, including but not limited to any and all servicing agreements, files, documents, records, data bases, computer tapes, copies of computer tapes, proof of insurance coverage, insurance policies, appraisals, other closing documentation, payment history records, and any other records relating to or evidencing the servicing of the Mortgage Loans and REO Properties (the “Servicing Agreement shall provide that compensating Records”), and (ii) the Borrower grants the Lender a security interest payments as defined therein with respect in all servicing rights relating to the Senior Notes Mortgage Loans and REO Properties and all Servicing Records to secure the obligation of the Borrower or its designee to service in conformity with this Section and any other obligation of the Borrower to the Lender. The Borrower covenants to safeguard such Servicing Records and to deliver them promptly to the Lender or its designee (including the Custodian) at the Lender’s request; provided that prior to an Event of Default, delivery of copies of the Servicing Records will satisfy the Borrower’s obligations on the last sentence of this Section 11.15(b).
(i) The Borrower shall deposit or cause the Servicer to deposit all Collections into the Collection Account within one Business Day of receipt of good funds thereof.
(ii) Except as expressly provided for in this paragraph (ii) and paragraph (iii) below, no withdrawals shall be allocated by made from the Master Collection Account. On each Payment Date prior to an Event of Default, the Servicer between shall distribute upon receipt of notice from the Senior NotesBorrower or the Lender as to the amount due and payable (the calculation of such amounts shall be the responsibility of the party submitting the notice), pro ratafrom such amounts available in the Collection Account as of the close of business on the last Business Day of the immediately preceding Collection Period for application in the following priority:
(a) to the Borrower and the Servicer, an amount equal to Reimbursable Expenses (to the extent not previously reimbursed); and (B) to the Servicer, an amount equal to the Servicing Fee and all unpaid Servicing Fees from prior Payment Dates.
(b) to the Lender, all amounts due (including the amounts sufficient to cause the outstanding principal amount of Advances to equal the Borrowing Base) as of such Payment Date pursuant to this Agreement; and
(c) to the Borrower, an amount equal to all Available Proceeds. At any time after Servicer receives notice from Lender that an Event of Default under this Agreement is then continuing, Servicer shall make payments from the Collection Account only in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect the express written instructions of a Non-Lead Securitization Note to the related Non-Lead Securitization Note HolderLender.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Master Loan and Security Agreement (New Century Financial Corp)
Servicing. (a) Each Noteholder The Servicer shall service the Purchased Mortgage Loans in accordance with Accepted Servicing Practices (as defined in the Master Repurchase Agreement) and the Servicing Addendum. The Servicer shall not resign as servicer or transfer the servicing of any Purchased Mortgage Loan without the prior written consent of the Required Noteholders and the Standby Servicer. The Servicer shall not be permitted to resign unless a successor servicer has been appointed or the Standby Servicer has assumed the role of Servicer. If the Standby Servicer is unable or unwilling to act as successor Xxxxxxxx, it may petition a court of competent jurisdiction to appoint such successor. The Indenture Trustee shall provide the Rating Agency with written notice upon any resignation of the Servicer pursuant to Section 4.3. The Servicer shall hold or cause to be held all escrow funds collected with respect to the Purchased Mortgage Loans in accounts (each of which shall be an Eligible Account) for the Holders of the Notes and shall apply the same for the purposes for which such funds were collected. The Servicer will maintain all Servicing Records not in the possession of the Mortgage Loan Custodian in good and complete condition in accordance with industry practices for assets similar to the Purchased Mortgage Loans and preserve them against loss. On each Business Day, the Indenture Trustee shall electronically provide the Servicer with a schedule of Mortgage Loans subject to the Master Repurchase Agreement. In connection with the foregoing, the Servicer hereby acknowledges and agrees that, subject in each case to the terms of this Agreement, Servicer is servicing the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, Loans subject to the terms Master Repurchase Agreement for the benefit of Issuer and the Indenture Trustee, on behalf of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other NoteholderNoteholders.
(b) In no event Except as set forth below, the Servicer shall the Note B Holder be entitled to exercise any rights cause all Income received by it on account of the “directing holder” consulting class Purchased Mortgage Loans to be deposited in the Buyer’s Account [***] of receipt; provided, however, that, if the Standby Servicer is the Servicer, such amounts shall be deposited [***] of receipt. Notwithstanding the foregoing, following the occurrence and continuance of an Event of Default or any analogous class a Repo Trigger Event and a Trust Officer of the Indenture Trustee receiving written notice or holder under having actual knowledge of such an event, the Securitization Servicing Agreement except Indenture Trustee will direct the Servicer to remit all Income into the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling NoteholderPayment Account.
(c) In no event may The Payment Account shall only contain collections on the Securitization Servicing Agreement change Purchased Assets subject to this Indenture. As further provided in Section 5.1 hereof, the interest allocable toPayment Account shall be held at U.S. Bank, National Association, in the name of and under the sole control of the Indenture Trustee. Neither the Seller nor the Servicer shall have any right to direct any disposition of funds from the Payment Account or the amount to give any instructions of any payments due tokind to the Indenture Trustee with respect to the Payment Account. Upon making any deposit into Payment Account, the Note B-1 Holder or Note B-2 Holder or materially increase Servicer shall provide the Controlling Noteholder’s obligations or materially decrease Indenture Trustee with the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect loan identification number and the Controlling Noteholder’s rights hereunderprincipal and interest attributable to such Mortgage Loan which shall have been deposited into the Payment Account.
(d) The Securitization Servicer shall service the Purchased Mortgage Loans [***] (the “Servicing Agreement Term”) commencing as of the date of the related initial Purchase Date. Each such Servicing Term shall contain provisions be deemed to the effect that:
be renewed or terminated. If such Servicing Term is not renewed (which is hereby deemed renewed unless (i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization a Servicing Agreement;
Termination Event has occurred and is continuing or (ii) if the Note B Holder Seller is the Servicer, a Repo Trigger Event under the Master Repurchase Agreement has occurred and is continuing), the Servicer agrees that the Indenture Trustee may terminate the Servicer as servicer hereunder at will and the Servicer shall transfer the servicing as described below.
(e) On each Reporting Date, the Servicer shall furnish to the Issuer, the Rating Agency and the Indenture Trustee the Asset Tape for the Purchased Mortgage Loans as of the last day of the calendar month preceding the related Reporting Date and a Monthly Servicer Report for such Reporting Date; provided, that, with respect to the first Reporting Date, the Asset Tape and the Monthly Servicer Report for the Purchased Mortgage Loans will be as of the Closing Date. Included in such Asset Tape shall be entitled to receivethe delinquency status of each Purchased Mortgage Loan without including in such determination any payment holidays or skip payments. If the Servicer should discover that, and for any reason whatsoever, the Master Servicer and the Special Servicer shall provide, or any information, relating entity responsible to the Servicer for managing or servicing any such Purchased Mortgage Loan has failed to perform fully the Servicer’s obligations under the Program Agreements or any of the obligations of such entities with respect to the Purchased Mortgage Loan, the Mortgage Loan Borrower Servicer shall promptly notify the Indenture Trustee and the Standby Servicer.
(f) Neither the Servicer nor those acting on the Servicer’s behalf shall amend, modify, or the Mortgaged Property as such Person may reasonably request and in the possession waive any term or condition of, or collected settle or known bycompromise any claim in respect of, any item of the Master Servicer or Special Servicer relating to the Purchased Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report Loans or any other information relating to the Special Servicer’s workout strategy related rights or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under Program Agreements without the Securitization Servicing Agreement and prior written consent of Holders [***] of each Class of Notes, except if such action may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended taken without the consent of the Note B Holder any Holders if such amendment would action does not (i) affect the amount or timing of any payment of principal or interest payable with respect to a Purchased Mortgage Loan, extend its scheduled maturity date, modify its interest rate, or constitute a cancellation, reduction or discharge of its outstanding principal balance or (ii) materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed security afforded by the Master Servicer real property, furnishings, fixtures, or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean equipment securing such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisionsAsset.
(g) If The Indenture Trustee is not responsible for the Note B Holder exercises Servicer’s performance of its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holderobligations under this Indenture, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note Servicer is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration not an agent of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the NotesIndenture Trustee, and that in under no circumstances shall the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances Indenture Trustee be liable for any action or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration inaction of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Indenture (loanDepot, Inc.)
Servicing. In consideration of the Participant's agreement to purchase Participations from the Mortgage Originator, the Mortgage Originator hereby agrees to act as the servicer of the Mortgage Loans subject to each Participation. So long as any indebtedness remains outstanding on any of the Mortgage Loans, the Mortgage Originator shall service such Mortgage Loans until all payments due with respect to the related Participation are paid in full, and to that end will, by way of illustration only and without limitation:
(a) Each Noteholder acknowledges Proceed with reasonable diligence to collect all payments on the Mortgage Loans as and agrees thatwhen they shall become due and payable, subject exercising the same standard of care and using the same methods that the Mortgage Originator would use in each case servicing mortgage loans held in its portfolio or, if higher, the standard of care and methods used in the mortgage loan servicing industry for the servicing of loans held by others;
(b) Remit to the terms Participant on or before the tenth day of each month, except as Participant may change this Agreement, due day in any billing schedule or other written notice sent to the Mortgage Loan shall be serviced prior to Originator, (i) the Securitization Date under interim servicing arrangements Participant's pro rata share of the amount Of principal collected on each of the outstanding Mortgage Loans during the previous month and (ii) accrued interest on the outstanding Participation Principal Balance for each Participation as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreementI above; provided, however, that until if any collections on a replacement servicing agreement has been entered intoMortgage Loan are due to foreclosure or other liquidation of the Mortgage Loan, then such collections shall be applied in accordance with Section 5 above;
(c) Cause the Note A-1-1 Holder shall cause related mortgagor to maintain hazard Insurance policies, including but limited to policies of flood insurance if required, covering the mortgaged premises in ail amount at least equal to the outstanding mortgage balance;
(d) Keep records pertaining to each mortgage note and the collections thereon and permit the Participant to examine these and other records pertaining to each of the Mortgage Loans at such times as the Participant may elect during the Mortgage Originator's business hours; and
(e) Cause the taxes on the mortgaged premises securing each Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force examined annually and effect with respect report any delinquent taxes to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisionsParticipant.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Participation Agreement (First Chesapeake Financial Corp)
Servicing. (a) As a condition of entering into a Transaction with respect to any Purchased Asset, Buyer may require Seller to cause such Purchased Asset to be administered by Collateral Administrator or its agents for Seller for a term of thirty (30) days (the “Servicing Term”). If the Servicing Term expires with respect to any Purchased Asset (i) for any reason other than such Purchased Asset no longer being subject to a Transaction hereunder, or (ii) at any time other than during the occurrence and continuation of an Event of Default, then Collateral Administrator shall continue to service the Purchased Asset for an additional thirty (30) days. Each Noteholder thirty (30) day extension period shall automatically be deemed to be extended (subject to the limitations above) without notice unless Buyer notifies Seller in writing of such termination which notice shall only be given after an Event of Default. Collateral Administrator shall service or cause to be serviced the applicable Purchased Asset in accordance with Accepted Servicing Practices and in accordance with all applicable Requirements of Law and the provisions of any applicable servicing agreement. Seller acknowledges that Buyer shall retain a Facility Administrative Agent with respect to the Purchased Assets, and agrees thatin such events Seller shall pay to Buyer a non-refundable Facility Administration Fee. Seller may appoint a successor Collateral Administrator acceptable to Buyer in its reasonable discretion. If Buyer does not appoint a Facility Administrative Agent or consents to terminate the obligation to pay the Facility Administration Fee, subject the Facility Administration Fee shall cease to be an obligation of Seller.
(b) The Collateral Administrator may delegate to any Person any of its obligations hereunder; provided, however, that the Collateral Administrator shall cause the performance of all subcontracted services and any subservicing agreement to be consistent with the provisions of this Agreement. Notwithstanding any such subservicing agreement, the Collateral Administrator shall be obligated to the same extent and under the same terms and conditions as if the Collateral Administrator alone was servicing the Purchased Assets in each case to accordance with the terms of this Agreement. Notwithstanding any other provision of this Agreement, the Mortgage Loan any fees or other compensation payable to any subservicer shall be serviced prior the responsibility of Seller. Any subservicing agreement that may be entered into and any transactions or services relating to the Securitization Date under interim servicing arrangements Purchased Assets involving a subservicer in its capacity as directed by such shall be deemed to be between the Note A-1-1 Holder subservicer and from the Collateral Administrator alone, and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer Buyer shall not be obligated deemed a party thereto and shall have no obligations, duties or liabilities with respect to advance monthly payments of principal or interest in respect the subservicer. Buyer agrees that it will not deliver any instructions to a subservicer servicing a Purchased Asset on behalf of the Notes Collateral Administrator unless an Event of Default has occurred or is continuing or the Collateral Administrator is terminated.
(c) At Buyer’s request, Seller shall cause the transfer of servicing from Collateral Administrator to Facility Administrative Agent of each Purchased Asset, together with all of the related Records in its possession, to Buyer’s designee upon the earliest of (i) the occurrence and continuation of an Event of Default hereunder, (ii) the occurrence and continuation of an event of default under the Collateral Administration Agreement, or (iii) the termination of the Servicing Term.
(d) During the period a Collateral Administrator or its agent is servicing the Purchased Asset, Collateral Administrator shall agree that Buyer is entitled to the related Credit Files and Records and Collateral Administrator shall at all times maintain and safeguard (or cause to be maintained and safeguarded) the Credit File for the Purchased Asset (including photocopies or images of the documents delivered to Buyer), and accurate and complete records of its (or its agent’s) servicing of the Purchased Asset; such Collateral Administrator’s (or its agent’s) possession of the Credit Files and Records being for the sole purpose of servicing such Purchased Asset and such retention and possession by Collateral Administrator (or its agent’s) being in a custodial capacity only.
(e) At Buyer’s request, Seller shall promptly deliver to Buyer reports regarding the status of any Purchased Asset being serviced by or on behalf of Seller, which reports shall include, but shall not be limited to, a description of any default thereunder for more than thirty (30) days or such other than circumstances that could cause a material adverse effect on such Purchased Asset, Buyer’s rights to such Purchased Asset or the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall collateral securing such Purchased Asset; Seller may be required to advance monthly payments deliver such reports until the release of principal the Purchased Asset by Buyer. Seller shall immediately notify Buyer if it becomes aware of any payment default that occurs under the Purchased Asset or any default under any Collateral Administration Agreement that would materially and interest on adversely affect any Purchased Asset subject thereto.
(f) Seller shall release its custody of the contents of any Credit File or Asset File only (i) in accordance with the written instructions of Buyer, (ii) upon the consent of Buyer when such release is required as incidental to Seller’s or its agent’s servicing of the Purchased Asset, or (iii) as required by any applicable Non-Lead Securitization Note pursuant Requirement of Law.
(g) Buyer reserves the right to appoint a successor Collateral Administrator at any time following an Event of Default that is continuing to service any Purchased Asset (each, a “Facility Administrative Agent”) in its sole discretion. If Buyer elects to make such an appointment, Seller shall be assessed all costs and expenses incurred by Buyer associated with transferring the servicing of the Purchased Asset to the terms Facility Administrative Agent. In the event of such an appointment, Seller shall perform all acts and take all action so that any part of the Credit File and related Records held by Seller, together with all receipts relating to such Purchased Asset, are promptly delivered to Facility Administrative Agent, and shall otherwise reasonably cooperate with Buyer in effectuating such transfer. Seller shall have no claim for lost servicing income, lost profits or other damages if Buyer appoints a Facility Administrative Agent hereunder and the servicing fee is reduced or eliminated. For the avoidance of doubt, any termination of the Facility Administrative Agent’s rights to service by the Buyer as a result of an Event of Default shall be deemed part of an exercise of the Buyer’s rights to cause the liquidation, termination or acceleration of this Agreement.
(h) Seller shall provide promptly to Buyer a Collateral Administrator Notice addressed to and agreed to by the Collateral Administrator of the related Non-Lead Servicing Agreement) if Purchased Assets, advising such principal or interest is not paid Collateral Administrator of such matters as Buyer may reasonably request, including, without limitation, recognition by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxesCollateral Administrator of Buyer’s interest in such Purchased Assets and the Collateral Administrator’s agreement that upon receipt of notice of an Event of Default from Buyer, insurance premiums and other expenses related it will follow the instructions of Buyer with respect to the maintenance Purchased Assets and any related Income with respect thereto.
(i) For the avoidance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereondoubt, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization Collateral Administration Agreement and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to Seller shall not retain the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect economic rights to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Purchased Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean indivisible from such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisionsPurchased Asset.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Master Repurchase Agreement (Granite Point Mortgage Trust Inc.)
Servicing. (a) Each Noteholder acknowledges The Lender, as an independent contractor, shall (i) service and agrees that, subject administer the Mortgage Loans in each case to a manner that is consistent with the terms of this AgreementAgreement and with servicing industry standards and shall (ii) exercise the same care that the Lender customarily employs and exercises in servicing and administering mortgage loans for its own account.
(b) The Lender and Participant shall comply with their respective obligations to provide notice of transfer of servicing (if applicable) to Mortgagors pursuant to Section 6 of the Real Estate Settlement Procedures Act, if applicable. Servicing will be retained by Lender at the servicing fee rate indicated in Section 3.12 with payments on the 25th of each month with actual reporting and actual remittances. Lender shall deduct the service fee from the monthly remittance due Participant.
(c) Lender warrants that Lender shall see that the improvements on the premises securing each Mortgage Loan are kept insured by hazard insurance policies issued by a company acceptable to FNMA/FHLMC, in an amount equal to the outstanding principal of the Mortgage Loan or the full insurable value of the improvements, whichever is less, and of a type at least as protective as fire and extended coverage, containing a mortgagees clause naming the Lender and its successors and assigns as loss payee.
(d) Upon Participants request, Lender warrants that the Servicer shall furnish a detailed statement of its financial condition, and shall give Participant or its authorized representative upon reasonable advance notice opportunity at any time during business hours to examine Servicers books and records. Lender warrants that Servicer shall cause a certified public accountant employed by it to provide Buyer, not later than 90 days after the close of Servicers fiscal year, with a certified statement of Servicer’s financial condition as of the close of its fiscal year.
(e) Until the principal and interest of each mortgage is paid in full, Lender warrants that Servicer shall:
(1) Proceed diligently to collect all payments due under the terms of each Mortgage Loan as they become due.
(2) Keep a complete, accurate, and separate account of and properly apply all sums collected by it from the Mortgagor on account of each such Mortgage Loan for principal and interest, taxes, assessments and other public charges, hazard insurance premiums and FHA insurance or mortgage insurance premiums, and upon request, furnish Participant with evidence acceptable to Participant all expenditures for taxes, assessments and other public charges, hazard insurance premiums and FHA insurance or mortgage insurance premiums. In the event any Mortgagor fails to make a payment to said Lender required to be made under the terms of said Mortgage Loan, Lender warrants that Servicer will notify Participant of such fact within thirty days after the same shall have become due and payable.
(3) Deposit all funds received on behalf of such Mortgage Loan in a custodial demand deposit account in an institution, the deposits of which are insured by the Federal Deposit Insurance Corporation. Such account shall be serviced prior held by Servicer as trustee or custodian which shall maintain detailed records to show the respective interests of each individual Mortgagor in the account. Each such account shall be established and maintained in a manner which complies with the applicable rules and regulations of the Federal Deposit Insurance Corporation.
(4) From the funds so deposited, (1) pay promptly to the Securitization Date under interim servicing arrangements as directed by proper parties when and if due FHA insurance premiums, mortgage insurance premiums, taxes, special assessments, ground rents, and premiums on hazard insurance, and (2) on or before the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant 25th day of each month pay to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments Participant all amounts of principal and interest on collected under the applicable Non-Lead Securitization Note Mortgage Loan, retaining as full compensation for all services performed hereunder the earned portion of the Servicing Fee per annum agreed to in this Agreement for each specific loan or block of loans, plus late charge, if any, collected from the mortgagor pursuant to the terms of the related Non-Lead Servicing Agreementmortgage, or any other HUD or VA allowable fees.
(5) Submit to Participant at lease annually an accounting of the balances in each trust account, together with a certificate that all disbursements were made for proper purposes, and that all payments required to be made hereunder have been made, with exceptions, if such principal or any.
(6) Make interest is not paid by rate adjustments in compliance with applicable regulatory adjustable loan requirements, the loan contract, and which reflect the applicable Mortgage Loan Borrower but rate index. The applicable interest rate adjustments shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan implemented in accordance with this Agreement the applicable adjustable loan regulations and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan contract. Servicer shall execute and deliver all appropriate notices required by the applicable adjustable loan regulations and loan contract regarding such interest rate adjustments including but not by way of limitations, timely notification of Participant, or to Participants successors or assigns, of all applicable data and information regarding such interest rate adjustments, and methods of implementation of such interest rate adjustments, new schedules of Participants pro rata share of collections of principal and interest, and of all prepayments of any loan hereunder by Mortgagor. If Mortgagor on its behalf any Mortgage Loan hereunder is in default at the time such notices are executed and delivered to such Mortgage, Servicer shall timely execute and deliver to mortgagor notice that all contractual rights under the Securitization Servicing Agreement (subject at all times applicable loan contract in regard to such default are reserved even though the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholderinterest rate is adjusted.
(b7) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given Perform such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable toother customary duties, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receivefurnish such reports, and the Master Servicer and the Special Servicer shall provide, any information, relating execute such other documents in connection with its duties hereunder as Participant from time to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person time reasonably may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreementrequire.
(f) At Lender warrants that Servicer will notify Participant upon receipt of notice of the following:
(1) The vacating of or any time after change in the Securitization Date occupancy of any premises securing a Mortgage.
(2) The sale or transfer of any such premises.
(3) The death, bankruptcy, insolvency or other disability of a mortgagor which might impair ability to repay the loans.
(4) Any loss or damage to any such premises, in which event, in addition to notifying Participant, Lender shall see that the Note A-1-1 is no longer subject insurance companies concerned are promptly notified by Servicer.
(5) Any lack of repair or any other deterioration or waste suffered or committed in respect to the provisions of premises covered by the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; providedmortgage. It is understood, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan no notice need to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect given to the Mortgage Loan, provided, however, that the Participant of any facts other than those of which Lender or Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreementnotice, and the Note B Holder agrees to reasonably negotiate the final terms those of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisionswhich Servicer would have had notice.
(g) If Lender warrants that Servicer will not waive, modify, release or consent to postponement on the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon part of the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment mortgagor of any termination feesterm or provision of the mortgage without the written consent of Participant.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note It is included in a Securitization, understood Lender shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but require Servicer reinspection only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances those proprieties on which the mortgage becomes ninety (90) or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisionsmore days delinquent.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect Lender warrants Servicer will upon the request and under the direction of Participant assist in the foreclosure or other acquisition of the Mortgaged Property securing any Mortgage, the transfer of such property to the Senior Notes will FHA or VA and the collection of any applicable mortgage insurance and pending completion of these steps, protect such property from waste and vandalism. In the event that title to the property is acquired in foreclosure or deed in lieu of foreclosure, the deed or certificate of sale shall be allocated by taken in the Master Servicer between name of the Senior Notes, pro rata, in accordance with their respective principal amountsParticipant or its designee. The Master Servicer shall remit any compensating interest payment in respect disposition of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holderproperty is the Participants responsibility.
(j) In the event Participant sells all or any filing is required part of its interest in a Mortgage Loan covered by the contract to be made a third party, including the sale of participating interest therein, such third party shall succeed to all of the rights of Participant hereunder for the portion purchased and this Agreement shall remain in full force and effect. However, in no event shall there by more than two (2) persons at any Non-Lead Depositor given time having the status of a Participant hereunder. In such event, Lender warrants that Servicer will remit all principal and interest installments collected under the related Lead Securitization Mortgage Loans directly to such third party or parties by or before the 25th of each month, after deduction of the Servicing Fee as herein provided. The obligation to make direct remittances and to execute and deliver all appropriate notices required by this Agreement to such third party or parties, shall arise upon thirty days written notice of such assignment given by such subsequent buyers to Servicer.
(k) The Participant may, by notice to Lender, terminate this Agreement as to any or all of the Mortgage Loans being serviced if:
(l) Lender fails to perform its obligations hereunder and is notified by Participant within sixty (60) days of such discovery. Upon notification, Lender shall have ninety (90) days to correct and cure such deficiency.
(1) Lender or Servicer becomes insolvent or bankrupt or is placed under conservatorship or receivership.
(2) Lender assigns its rights and obligation hereunder, without written consent of Participant.
(3) In any event and without cause, upon thirty (30) days written notice and payment to Lender of a sum equal to 2.5% of the aggregate principal amount then outstanding of all the Mortgage Loans subject to this Agreement.
(m) Upon termination of this agreement, Lender warrants that Servicer will account for and turn over to Participant all funds collected under each Mortgage Loan, less only the compensation then due Servicer, and deliverer to Participant all records and documents relating to each such mortgage that it may have in order its possession.
(n) The Servicer of the Mortgage Loans sold pursuant to comply with this Agreement is Lender. Lender agrees that Servicer will not be changed without Participants consent.
(o) In the Non-Lead Depositor’s requirements under event servicing is transferred to a new lender, Lender agrees that it will remit to Participant, or at Participants option, to the Securities Exchange Act new lender, within 48 hours after receipt, any payment received from a Mortgagor on a Mortgage Loan including, without limitation, al payments of 1934principal and interest, as amendedlate charges, and bad check charges received from a Mortgagor on or after the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) Closing Date. Lender shall use commercially reasonable efforts to timely comply with any remit such filingpayment via a nationally recognized overnight delivery service.
Appears in 1 contract
Samples: Participation Agreement (Bankunited Financial Corp)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case In consideration of the Participant! s agreement to purchase Participations from the terms of this AgreementMortgage Originator, the Mortgage Loan shall be serviced prior Originator hereby agrees to act as the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien servicer of the Mortgage thereon, subject to the terms Loans in each Mortgage Pool. So long as any indebtedness remains outstanding on any of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may electMortgage Loans, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with Mortgage Originator shall service such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer Mortgage Loans until all payments due with respect to the related Participation are paid in full, and to that end will, by way of illustration only and without limitation:
(a) Proceed with reasonable diligence to collect all payments on the Mortgage Loans as and when they shall become due and payable, exercising the same standard of care and using the same methods that the Mortgage Originator would use in servicing mortgage loans held in its portfolio or, if higher, the standard of care and methods used in the mortgage loan servicing industry for the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.loans held by others;
(b) In no event shall At the Note B Holder be entitled to exercise any rights direction of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except Participant, remit to the extent Participant on or before the Note B Holder is given tenth day of each month (i) the Participant's pro rata. share of the amount of principal collected on each of the outstanding Mortgage Loans during the previous month and (ii) accrued interest on the outstanding Participation Principal Balance for each Participation as set forth in Paragraph I above; provided, however that if any collections on a Mortgage Loan are due to foreclosure or other liquidation of the Mortgage Loan, then such rights expressly under the terms of this Agreement or the Servicing Agreement collections shall be applied in its capacity as the Controlling Noteholder.accordance with Paragraph 5 above;
(c) In no event may Cause the Securitization Servicing Agreement change related mortgagor to maintain hazard insurance policies, including but not limited to policies of flood insurance if required, covering the interest allocable to, or mortgaged premises in an amount at least equal to the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.outstanding mortgage balance;
(d) The Securitization Servicing Agreement shall contain provisions Keep records pertaining to each mortgage note and the effect that:
(i) any payments received on collections thereon and permit the Mortgage Loan shall be paid by the Master Servicer Participant to examine these and other records pertaining to each of the other Noteholders on Mortgage Loans at such times as the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to Participant may elect during the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rightsOriginator's business hours; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to Cause the contrary contained in this Agreement, any obligation of taxes on the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the mortgaged premises securing each Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable examined annually and report any delinquent taxes to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisionsParticipant.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing AgreementNote A PSA; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) A if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing AgreementNote A PSA. The Note B Holder acknowledges that each Senior the Note Holder A may elect, in its sole discretion, to include the related Senior Note A in a the Note A Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, the Note A Holder at such Senior the Note A Holder’s sole cost and expense, expense to effect such Note A Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement Note A PSA by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing AgreementNote A PSA. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Note A Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement Note A PSA (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement Note A PSA except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement Note A PSA change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 B Holder or materially increase the Note B Holder’s or the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s or the Note B Holder’s rights, remedies or protections hereunder or otherwise adversely affect hereunder. The Note A PSA shall require the Controlling Noteholder’s Master Servicer and Special Servicer to service the Mortgage Loan in accordance with the terms of this Agreement, including the rights of the Note B Holder hereunder.
(d) The Securitization Servicing Agreement Note A PSA shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing AgreementNote A PSA;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement Note A PSA but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing AgreementNote A PSA;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement Note A PSA and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement Note A PSA may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Note A Securitization Date that the Note A-1-1 A is no longer subject to the provisions of the Securitization Servicing AgreementNote A PSA, the Note A-1-1 A Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing AgreementNote A PSA, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing AgreementNote A PSA, and all references herein to the “Securitization Servicing AgreementNote A PSA” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 A Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement Note A PSA as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement Note A PSA shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by the Note A-1-1 A Holder and does not have to be performed by the service providers set forth under the Securitization Servicing AgreementNote A PSA. The Note A-1-1 A Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Co Lender Agreement (JPMCC Commercial Mortgage Securities Trust 2016-Jp3)
Servicing. (a) As a condition of purchasing a Mortgage Loan, Buyer may require Seller to service such Mortgage Loan as agent for Buyer for a term of thirty (30) days (the “Servicing Term”). If the Servicing Term expires with respect to any Purchased Mortgage Loan for any reason other than such Purchased Mortgage Loan no longer being subject to a Transaction hereunder, then upon agreement of Buyer, such Seller shall continue to service the Purchased Mortgage Loan for an additional thirty (30) days. Each Noteholder acknowledges thirty (30) day extension period shall automatically expire without notice unless Buyer agrees to any additional thirty (30) day extension period(s). The Seller shall service the Purchased Mortgage Loans in accordance with prudent mortgage loan servicing standards and agrees thatprocedures generally accepted in the mortgage banking industry and in accordance with all applicable requirements of the Agencies, subject Requirement of Law, the provisions of any applicable servicing agreement, and the requirements of any applicable Takeout Commitment and the Approved Investor, so that the eligibility of the Mortgage Loan for purchase under such Takeout Commitment is not voided or reduced by such servicing and administration.
(b) If any Mortgage Loan that is proposed to be sold on a Purchase Date is serviced by a servicer other than Seller and any interim servicer for correspondent loans (a “Subservicer”), or if the servicing of any Mortgage Loan is to be transferred to a Subservicer, the Seller shall provide a copy of the related servicing agreement and a Servicer Notice executed by such Subservicer (collectively, the “Servicing Agreement”) to Buyer prior to such Purchase Date or servicing transfer date, as applicable. Each such Servicing Agreement shall be in form and substance reasonably acceptable to Buyer. In addition, Seller shall have obtained the prior written consent of Buyer for such Subservicer to subservice the Mortgage Loans, which consent may not unreasonably be withheld or delayed; Reverse Mortgage Servicers, Inc. is approved by Buyer to subservice Mortgage Loans. In no event shall Seller’s use of a Subservicer relieve such Seller of its obligations hereunder, and such Seller shall remain liable under this Agreement as if such Seller were servicing such Mortgage Loans directly.
(c) Seller shall transfer actual servicing of each case Purchased Mortgage Loan, together with all of the related Records in its possession, to Buyer’s designee and designate Buyer’s designee as the terms servicer in the MERS System upon the earliest of (i) the occurrence of a Default or Event of Default hereunder, (ii) the termination of Seller as interim servicer by Buyer pursuant to this Agreement, (iii) the expiration (and non-renewal) of the Servicing Term, or (iv) transfer of servicing to any entity approved by Buyer and the assumption thereof by such entity. Buyer shall have the right to terminate Seller as interim servicer of any of the Purchased Mortgage Loans, which right shall be exercisable at any time in Buyer’s sole discretion, upon written notice. Seller’s transfer of the Records and servicing under this Section shall be in accordance with customary standards in the industry and such transfer shall include the transfer of the gross amount of all escrows held for the related mortgagors (without reduction for unreimbursed advances or “negative escrows”).
(d) During the period Seller is servicing the Purchased Mortgage Loans as agent for Buyer, Seller agrees that Buyer is the owner of the related Credit Files and Records and Seller shall at all times maintain and safeguard and cause the Subservicer to maintain and safeguard the servicing records included in the Credit File for the Purchased Mortgage Loans (including photocopies or images of the documents delivered to Buyer) to the extent in their possession, and accurate and complete records of its servicing of the Purchased Mortgage Loan; the Seller’s possession of the servicing records included in the Credit Files and Records being for the sole purpose of servicing such Purchased Mortgage Loans and such retention and possession by the Seller being in a custodial capacity only.
(e) At Buyer’s request, Seller shall promptly deliver to Buyer reports regarding the status of any Purchased Mortgage Loan being serviced by Seller, which reports shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b))include, pursuant to the Securitization Servicing Agreement; provided that the Master Servicer but shall not be obligated limited to, a description of any default thereunder for more than thirty (30) days or such other circumstances that could cause a material adverse effect on such Purchased Mortgage Loan, Buyer’s title to advance monthly payments of principal such Purchased Mortgage Loan or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall collateral securing such Purchased Mortgage Loan; Seller may be required to advance monthly payments of principal and interest on deliver such reports until the applicable Non-Lead Securitization Note pursuant to the terms repurchase of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Purchased Mortgage Loan Borrower but by Seller. Seller shall be obligated to advance delinquent real estate taxes, insurance premiums immediately notify Buyer if it becomes aware of any payment default that occurs under the Purchased Mortgage Loan or any default under any Servicing Agreement that would materially and other expenses related to the maintenance adversely affect any Purchased Mortgage Loan subject thereto.
(f) Seller shall release its custody of the Mortgaged Property and maintenance and enforcement contents of the lien servicing records included in any Credit File or Mortgage File relating to a Purchased Mortgage Loan only (i) in accordance with the written instructions of Buyer, (ii) upon the consent of Buyer when such release is required as incidental to Seller’s servicing of the Purchased Mortgage thereonLoan, subject is required to complete the terms Takeout Commitment or comply with the Takeout Commitment requirements, or (iii) as required by any applicable Requirement of Law.
(g) Buyer reserves the Securitization Servicing Agreement. The Note B Holder acknowledges that right to appoint a successor servicer at any time to service any Purchased Mortgage Loan (each Senior Note Holder may elect, a “Successor Servicer”) in its sole discretion. If Buyer elects to make such an appointment due to a Default or Event of Default, Seller shall be assessed all costs and expenses incurred by Buyer associated with transferring the servicing of the Purchased Mortgage Loans to include the Successor Servicer. In the event of such an appointment, Seller shall perform all acts and take all action so that any part of the servicing records included in the Credit File and related Senior Note Records held by Seller, together with all funds in a Securitization the Custodial Account and agrees that it willother receipts relating to such Purchased Mortgage Loan, subject are promptly delivered to Section 24Successor Servicer, and shall otherwise reasonably cooperate with Buyer in effectuating such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitizationtransfer. Subject to the terms of any applicable servicing agreement, Seller shall have no claim for lost servicing income, lost profits or other damages if Buyer appoints a Successor Servicer hereunder and conditions the servicing fee is reduced or eliminated. For the avoidance of doubt any termination of the Servicer’s rights to service by the Buyer as a result of an Event of Default shall be deemed part of an exercise of the Buyer’s rights to cause the liquidation, termination or acceleration of this Agreement.
(h) For the avoidance of doubt, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect Seller retains no economic rights to the servicing of the Purchased Mortgage Loans provided that the Seller shall continue to service the Purchased Mortgage Loans hereunder as part of its Obligations hereunder. As such, Seller expressly acknowledges that the Purchased Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact are sold to sign any documents reasonably required with respect to the administration and Buyer on a “servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholderreleased” basis.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Master Repurchase Agreement (Rocket Companies, Inc.)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements Date, as directed by described in the Note A-1-1 Holder definition of the Servicing Agreement and from and after the Securitization Date (except as otherwise set forth in Section 5(b2(f)), pursuant to the Lead Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest make P&I Advances in respect of the Notes other than the Notes included in the Lead Securitization Note (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable related Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Securitization Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower Borrower, but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereonmake Servicing Advances, subject to the terms of the Lead Securitization Servicing AgreementAgreement including any provisions governing the determination of non-recoverability. The Note B Holder Junior Noteholder acknowledges that each any Senior Note Holder Noteholder may elect, in its sole discretion, to include the related Senior Note its respective Note, or any portion thereof, in a Securitization one or more Securitizations and agrees that it will, subject to Section 2423, reasonably cooperate with such Holderthe applicable Senior Noteholder, at such Senior Note HolderNoteholder’s sole cost and expense, to effect any such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, the Special Servicer Servicer, the Trustee, any Certificate Administrator, the Asset Representations Reviewer and the Trustee any Securitization Operating Advisor under the Lead Securitization Servicing Agreement by the applicable Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer (and such other parties) with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Lead Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the such Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; provided, however, that this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder. Each Servicer shall be required pursuant to the Servicing Agreement to service the Mortgage Loan in accordance with the Servicing Standard, the terms of the Mortgage Loan Documents, this Agreement, the Servicing Agreement and applicable law, shall provide information to each Non-Lead Servicer to enable such Non-Lead Servicer to perform its servicing duties under the related Non-Lead Securitization Servicing Agreement and shall not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.
(b) In no event shall the Note B Holder Junior Noteholder be entitled to exercise any rights of the “directing holder” consulting ”, controlling class or any analogous class or holder under the Lead Securitization Servicing Agreement except to the extent the Note B Holder Junior Noteholder is given such rights expressly under the terms of this Agreement or the Lead Securitization Servicing Agreement in its capacity as the Controlling Noteholder.
(c) The Lead Securitization Servicing Agreement shall, unless otherwise agreed to by the Controlling Noteholder, contain (i) servicing and reporting provisions (including Asset Status Reports for all Major Decisions) substantially similar in all material respects to the servicing provisions of the Model PSA and (ii) a Servicing Standard substantially similar in all material respects to the servicing standard in the Model PSA. In no event may the Lead Securitization Servicing Agreement change the interest or principal allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder Junior Noteholder or materially increase the Controlling Junior Noteholder’s obligations or materially decrease the Controlling Junior Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect hereunder. The Lead Securitization Servicing Agreement shall require the Controlling Noteholder’s Master Servicer and the Special Servicer to service the Mortgage Loan in accordance with the terms of this Agreement, including the rights of the Junior Noteholder hereunder.
(d) The Lead Securitization Servicing Agreement shall contain provisions to the effect that:
(i) if a Servicer Termination Event under the Lead Securitization Servicing Agreement has occurred (A) with respect to the Master Servicer under the Lead Securitization Servicing Agreement that affects a Noteholder or any class of commercial mortgage securities backed by a Note or a participation interest in a Note, and the Master Servicer is not otherwise terminated under the Lead Securitization Servicing Agreement, then the Junior Noteholder or its designees (if the Junior Noteholder is the Controlling Holder), together with any affected Non-Lead Securitization Noteholder, shall be entitled to direct the Trustee to appoint a sub-servicer solely with respect to the Mortgage Loan (or if the Mortgage Loan is currently being sub-serviced, to replace the current sub-servicer, but only if such original sub-servicer is in default under the related sub-servicing agreement); and (B) the appointment (or replacement) of a sub-servicer with respect to the Mortgage Loan, as contemplated in clause (A) above, will in any event be subject to Rating Agency Confirmation in connection with any Securitization;
(ii) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders in accordance with Section 3 and Section 4 hereof on the “master servicer remittance date” under the Lead Securitization Servicing Agreement;
(iiiii) the Note B Holder Noteholders shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or the Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Securitization Servicing Agreement Trust that includes any Non-Lead Securitization Note (including, but not limited to, standard CREFC reports); provided that, notwithstanding anything to standard CREFC® reportsthe contrary contained in this Agreement, provided that if an interest in the Junior Note B or the Note B Holder Junior Noteholder is held by the Mortgage Loan Borrower or a any Mortgage Loan Borrower Related Party, then the Note B Holder Junior Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreementstrategy;
(iiiiv) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and may directly enforce such rights; and
(ivv) the Lead Securitization Servicing Agreement may not be amended without the consent of the Note B Holder other Noteholders if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holderother Noteholder’s rights with respect theretoto the Mortgaged Loan (as reasonably determined by the other Noteholders) thereunder.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) Noteholders agree to cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable substantially similar to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Lead Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Lead Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a any Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating AgencyAgency with respect to such Securitization; provided, further, however, that until a replacement servicing agreement has been entered into, the Lead Securitization Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Lead Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer Approved Servicer appointed by Note A-1-1 Holder the Lead Securitization Noteholder and does not have to be performed by the service providers set forth under the Lead Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If The Master Servicer shall be the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon master servicer on the Mortgage Loan being transferred Loan, and from time to time it (or the Trustee, to the Note B Holderextent provided in the Servicing Agreement) (i) shall be required to make Servicing Advances with respect to the Mortgage Loan, subject to the terms of the Servicing Agreement and this Agreement, and (ii) may be required to make P&I Advances on the Lead Securitization Note, if and to the extent provided in the Servicing Agreement and this Agreement. The Master Servicer, the Note B Holder Special Servicer and the Trustee, as applicable, shall be entitled to terminate reimbursement for a Servicing Advance, first from funds on deposit in the Whole Loan Custodial Account for the Mortgage Loan that (in any case) represent amounts received on or in respect of the Mortgage Loan, and then, in the case of Nonrecoverable Servicing Advances, if such funds on deposit in the Whole Loan Custodial Account are insufficient, from general collections of the Lead Securitization as provided in the Servicing Agreement in its sole discretion without payment and from general collections of any termination fees.
(h) Each each Non-Lead Securitization Note Holderas provided below. The Master Servicer, if its the Special Servicer and the Trustee, as applicable, will be entitled to reimbursement for Advance Interest Amounts on a Servicing Advance or a Nonrecoverable Servicing Advance, in the manner and from the sources provided in the Servicing Agreement, including from general collections of the Lead Securitization and, in the case of Servicing Advances, from general collections of each Non-Lead Securitization Note is included in as provided below. To the extent the Master Servicer, the Special Servicer or the Trustee, as applicable, obtains funds from general collections of the Lead Securitization as a Securitizationreimbursement for a Nonrecoverable Servicing Advance or any Advance Interest Amounts on a Servicing Advance or a Nonrecoverable Servicing Advance, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the each Non-Lead Securitization Note Holder Noteholder (including from general collections or any other amounts from any Non-Lead Securitization Trust) shall be responsible required to, promptly following notice from the Master Servicer, reimburse the Lead Securitization for its pro rata share of any such Nonrecoverable Servicing Advances Advance or Advance Interest Amounts (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event it being understood that the funds received with respect to pro rata share payable by each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will Securitization Noteholder under this paragraph would be determined by allocating such Nonrecoverable Servicing Advance or Advance Interest Amount, as the case may be, first to the Junior Note and then to the Senior Notes, in that order). In addition, each Non-Lead Securitization Noteholder (including, but not limited to, any Non-Lead Securitization Trust) shall be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Lead Securitization for such Non-Lead Securitization Noteholder’s pro rata share of any fees, costs or expenses incurred in connection with the servicing and administration of the Mortgage Loan as to which the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, Trustee or the Depositor of the Lead Securitization TrustSecuritization, as applicable, out of general funds is entitled to be reimbursed pursuant to the Servicing Agreement and any costs, fees and expenses related to obtaining any Rating Agency Confirmation, to the extent amounts on deposit in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement Whole Loan Custodial Account are insufficient for the reimbursement of such amounts. Each Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances Noteholder agrees to indemnify (together with advance interest thereoni) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 the following parties in respect of other mortgage loans in the Lead Securitization Trust pursuant to the terms of Servicing Agreement andAgreement) each of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Securitization Operating Advisor and the Depositor of the Lead Securitization (and any director, officer, member, manager, employee or agent of any of the foregoing, to the extent such parties are identified as indemnified parties in the case Servicing Agreement in respect of other mortgage loans) and (ii) the Lead Securitization Trust (such parties in clause (i) and the Lead Securitization Trust, to collectively, the extent “Indemnified Parties”) 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 servicing and administration of any additional trust fund expenses the Mortgage Loan and the Mortgaged Property (or, with respect to the Securitization Operating Advisor, incurred in connection with the provision of services for the Mortgage Loan) by under the Non-Lead Securitization TrustServicing Agreement (collectively, against any of the “Indemnified Items Items”) to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the such Non-Lead Master Servicer will Securitization Noteholder shall be required to to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s their pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trusteeincluding, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to if the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any has been included in a Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Securitization, from general collections or any other amounts from such Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.Securitization
Appears in 1 contract
Samples: Agreement Among Noteholders (UBS Commercial Mortgage Trust 2017-C4)
Servicing. In consideration of the Participant's agreement to purchase Participations from the Mortgage Originator, the Mortgage Originator hereby agrees to act as the servicer of the Mortgage Loans subject to each Participation. So long as any indebtedness remains outstanding on any of the Mortgage Loans, the Mortgage Originator shall service such Mortgage Loans until all payments due with respect to the related Participation are paid in full, and to that end will, by way of illustration only and without limitation:
(a) Each Noteholder acknowledges Proceed with reasonable diligence to collect all payments on the Mortgage Loans as and agrees thatwhen they shall become due and payable, subject exercising the same standard of care and using the same methods that the Mortgage Originator would use in each case servicing mortgage loans held in its portfolio or, if higher, the standard of care and methods used in the mortgage loan servicing industry for the servicing of loans held by others;
(b) Remit to the terms Participant on or before the tenth day of each month, except as Participant may change this Agreement, due day in any billing schedule or other written notice sent to the Mortgage Loan shall be serviced prior to Originator, (i) the Securitization Date under interim servicing arrangements Participant's pro rata share of the amount of principal collected on each of the outstanding Mortgage Loans during the previous month and (ii) accrued interest on the outstanding Participation Principal Balance for each Participation as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreementabove; provided, however, that until if any collections on a replacement servicing agreement has been entered intoMortgage Loan are due to foreclosure or other liquidation of the Mortgage Loan, then such collections shall be applied in accordance with Section 5 above;
(c) Cause the Note A-1-1 Holder shall cause related mortgagor to maintain hazard insurance policies, including but not limited to policies of flood insurance if required, covering the mortgaged premises in an amount at least equal to the outstanding mortgage balance;
(d) Keep records pertaining to each mortgage note and the collections thereon and permit the Participant to examine these and other records pertaining to each of the Mortgage Loans at such times as the Participant may elect during the Mortgage Originators business hours; and
(e) Cause the taxes on the mortgaged premises securing each Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force examined annually and effect with respect report any delinquent taxes to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisionsParticipant.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Servicing. (a) Each Noteholder acknowledges Guarantor hereby agrees to service the Underlying Mortgage Loans and agrees that, subject Underlying REO Properties consistent with the degree of skill and care that Guarantor customarily requires with respect to similar Underlying Mortgage Loans and Underlying REO Properties owned or managed by it and in each case to accordance with Accepted Servicing Practices. Guarantor shall service the terms of Underlying Mortgage Loans and Underlying REO Properties in accordance with this Agreement. Guarantor hereby agrees to (i) comply with all applicable Federal, State and local laws and regulations, (ii) maintain all state and federal licenses necessary for it to perform its servicing responsibilities hereunder and (iii) not impair the rights of Buyer in any Underlying Mortgage Loans and Underlying REO Properties or any payment thereunder. Buyer may terminate the servicing of any Underlying Mortgage Loan with the then existing servicer in accordance with Section 19(d) hereof.
(b) Guarantor shall hold or cause to be serviced prior held all escrow funds collected by Guarantor with respect to any Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties in trust accounts and shall apply the Securitization Date under interim servicing arrangements as directed same for the purposes for which such funds were collected.
(c) To the extent required by the Note A-1-1 Holder Section 6(b)(i) and from and after the Securitization Date (except as otherwise set forth in Section 5(b))6(c) hereof, pursuant to the Securitization Servicing Agreement; provided that the Master Servicer Guarantor shall not be obligated to advance monthly payments deposit all collections received by it on behalf of principal or interest in respect Seller on account of the Notes other than the Notes included Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties in the Lead Securitization Collection Account no later than two (2) Business Days following receipt.
(d) Upon the occurrence and each Non-Lead Master Servicer during the continuation of an Event of Default or Termination Event hereunder, Buyer shall be required have the right to advance monthly payments immediately terminate the Servicer’s right to service the Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties without payment of principal any penalty or termination fee. Guarantor and interest on Seller shall cooperate in transferring the applicable Non-Lead Securitization Note pursuant to the terms servicing of the related Non-Lead Servicing Agreement) if such principal or interest is not paid Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties to a successor servicer appointed by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, Xxxxx in its sole discretion. For the avoidance of doubt any termination of the Servicer’s rights to service by the Buyer as a result of an Event of Default shall be deemed part of an exercise of the Buyer’s rights to cause the liquidation, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions termination or acceleration of this Agreement. Upon the occurrence and during the continuation of an Event of Default or Termination Event hereunder, each Noteholder hereby irrevocably and unconditionally consents Guarantor will comply with the Buyer’s instructions with respect to the appointment Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties, to the extent permitted by applicable law.
(e) If Guarantor or Seller should discover that, for any reason whatsoever, any entity responsible to Seller by contract for managing or servicing any such Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties has failed to perform fully Seller’s obligations under the Facility Documents or any of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer obligations of such entities with respect to the Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties, Seller shall promptly notify Buyer.
(f) For the avoidance of doubt, neither Seller nor Guarantor shall retain any economic rights to the servicing of the Purchased Assets, Pledged Assets, Underlying Mortgage Loan in accordance with this Agreement Loans and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other NoteholderUnderlying REO Properties; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B Guarantor shall continue to service the Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties hereunder as part of its Obligations hereunder. As such, Seller and Guarantor expressly acknowledge that the Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties are sold or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled pledged to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special ServicerBuyer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to on a “servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreementreleased” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisionsbasis.
(g) If the Note B Holder exercises its purchase option in accordance Seller shall, with Section 12 hereofrespect to any Servicer (other than Guarantor), upon the Mortgage Loan being transferred provide promptly to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
Buyer (i) a Servicer Notice addressed to and agreed to by the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration Servicer of the Notes related Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties, advising such Servicer of such matters as Buyer may reasonably request, including recognition by the Servicer of Buyer’s interest in such Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties and the Mortgaged PropertyServicer’s agreement that upon receipt of notice of an Event of Default from Buyer, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to it will follow the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out instructions of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses Buyer with respect to the Purchased Assets, Pledged Assets, Underlying Mortgage Loan) by the Non-Lead Securitization Trust, against Loans and Underlying REO Properties and any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein related Income with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holderthereto.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Master Repurchase Agreement (Rocket Companies, Inc.)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to this Agreement and the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) A if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior the Note A Holder may elect, in its sole discretion, to include Note A in the related Senior Note in a A Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such Holderother Noteholder, at such Senior Note Holderother Noteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Note A Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder Noteholders set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder against any other Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 B Holder or materially increase the Controlling NoteholderNote B Holder’s obligations or materially decrease the Controlling NoteholderNote B Holder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling NoteholderNote B Holder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder Controlling Noteholder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provideprovide access to, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person the Controlling Noteholder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or the Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Note A Securitization Servicing Agreement Trust but not limited to standard CREFC® reportsCREFC reports and Asset Status Reports, provided that if an interest in Note B the Controlling Noteholder or the related Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder Controlling Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Informationexcluded information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would be materially and adverse to the Note B holder or would materially adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 A is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 A Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 A Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, ; provided, however, that the Servicer under the Securitization such replacement Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agencyadvance monthly payments of principal and interest; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer meeting the requirements of the Servicing Agreement appointed by the Note A-1-1 A Holder and the special servicer appointed by the Controlling Noteholder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Agreement Between Noteholders (JPMCC Commercial Mortgage Securities Trust 2017-Jp5)
Servicing. (a) As a condition of purchasing a Mortgage Loan, Buyer may require Seller to service such Mortgage Loan as agent for Buyer for a term of sixty (60) days (the “Servicing Term”), in accordance with prudent mortgage loan servicing standards and procedures generally accepted in the mortgage banking industry and in accordance with all applicable requirements of the Agencies, Requirements of Law, the provisions of any applicable servicing agreement, and the requirements of any applicable Takeout Commitment and the Approved Investor, so that the eligibility of the Mortgage Loan for purchase under such Takeout Commitment is not voided or reduced by such servicing and administration;
(b) If any Mortgage Loan that is proposed to be sold on a Purchase Date is serviced by a servicer other than Seller (a “Subservicer”), or if the servicing of any Mortgage Loan is to be transferred to a Subservicer, Seller shall provide a copy of the related servicing agreement and a Servicer Notice executed by such Subservicer (collectively, the “Servicing Agreement”) to Buyer prior to such Purchase Date or servicing transfer date, as applicable. Each Noteholder acknowledges such Servicing Agreement shall be in form and agrees thatsubstance reasonably acceptable to Buyer. In addition, subject Seller shall have obtained the prior written consent of Buyer for such Subservicer to subservice the Mortgage Loans, which consent may be withheld in Buyer’s sole good faith discretion. In no event shall Seller’s use of a Subservicer relieve Seller of its obligations hereunder, and Seller shall remain liable under this Agreement as if Seller were servicing such Mortgage Loans directly.
(c) Seller shall deliver the physical and contractual master servicing of each case Mortgage Loan, together with all of the related Records in its possession, to Buyer’s designee upon the terms earliest of (w) the occurrence and continuance of a Default or Event of Default hereunder, (x) the termination of Seller as servicer by Buyer pursuant to this Agreement, (y) the expiration (and non-renewal) of the Servicing Term, or (z) the transfer of servicing to any entity approved by Buyer and the assumption thereof by such entity. Buyer shall have the right to terminate Seller as master servicer of any of the Mortgage Loan Loans, which right shall be serviced exercisable at any time in Buyer’s sole good faith discretion, upon prior written notice to Seller. In addition, Seller shall deliver the Securitization Date under interim physical and contractual master servicing arrangements as directed by of each Mortgage Loan, together with all of the Note A-1-1 Holder and from and after related Records in its possession to Buyer’s designee, upon expiration of the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing AgreementTerm; provided that the Master Servicer Servicing Term and such delivery requirement will be deemed renewed on each Payment Date succeeding the related Purchase Date in the absence of directions to the contrary from Buyer; provided further that such delivery requirement will no longer apply to any Mortgage Loan, and Seller shall have no further obligation to service such Mortgage Loan as agent for Buyer, upon receipt by Buyer of the Repurchase Price therefor. Seller’s transfer of the Records and the physical and contractual servicing under this Section shall be in accordance with customary standards in the industry and such transfer shall include the transfer of the gross amount of all escrows held for the related mortgagors (without reduction for unreimbursed advances or “negative escrows”).
(d) During the period Seller is servicing the Mortgage Loans as agent for Buyer, Seller agrees that Buyer is the owner of the related Credit Files and Records and hereby Seller shall at all times maintain and safeguard and cause the Subservicer to maintain and safeguard the Credit File for the Mortgage Loan (including photocopies or images of the documents delivered to Buyer), and accurate and complete records of its servicing of the Mortgage Loan; Seller’s possession of the Credit Files and Servicing Records being for the sole purpose of master servicing such Mortgage Loans and such retention and possession by Seller being in a custodial capacity only. Seller hereby grants Buyer a security interest in all servicing fees ‑25‑ to secure the obligations of Seller and Subservicer to service in conformity with this Section and any related Servicing Agreement. It is understood and agreed by the parties that prior to an Event of Default, Seller shall retain the servicing fees with respect to the Mortgage Loans.
(e) At Buyer’s request, Seller shall promptly deliver to Buyer reports regarding the status of any Mortgage Loan being serviced by Seller, which reports shall include, but shall not be obligated limited to, a description of any default thereunder for more than thirty (30) days or such other circumstances that could cause a material adverse effect on such Mortgage Loan, Buyer’s title to advance monthly payments of principal such Mortgage Loan or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall collateral securing such Mortgage Loan; Seller may be required to advance monthly payments deliver such reports until the repurchase of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower by Seller. Seller shall promptly, but in no event later than two (2) Business Days after a Responsible Office of Seller becomes aware of it, notify Buyer of any payment default that occurs under the Mortgage Loan or any default under any Servicing Agreement that would materially and adversely affect any Mortgage Loan subject thereto.
(f) Seller shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance release its custody of the Mortgaged Property and maintenance and enforcement contents of any Credit File or Mortgage File only (i) in accordance with the lien written instructions of Buyer, (ii) upon the consent of Buyer when such release is required as incidental to Seller’s servicing of the Mortgage thereonLoan, subject is required to complete the terms Takeout Commitment or comply with the Takeout Commitment requirements, or (iii) as required by Requirements of Law.
(g) Buyer reserves the Securitization Servicing Agreement. The Note B Holder acknowledges that right to appoint a successor servicer at any time to service any Mortgage Loan (each Senior Note Holder may elect, a “Successor Servicer”) in its sole good faith discretion. If Buyer elects to make such an appointment due to the continuance of a Default or Event of Default, Seller shall be assessed all costs and expenses incurred by Buyer associated with transferring the Mortgage Loans to include the Successor Servicer. In the event of such an appointment, Seller shall perform all acts and take all action so that any part of the Credit File and related Senior Note Records held by Seller, together with all funds in a Securitization the Custodial Account and agrees that it willother receipts relating to such Mortgage Loan, subject are promptly delivered to Section 24Successor Servicer, and shall otherwise reasonably cooperate with Buyer in effectuating such Holdertransfer. Seller shall have no claim for lost servicing income, at such Senior Note Holderlost profits or other damages if Buyer appoints a Successor Servicer hereunder and the servicing fee is reduced or eliminated. For the avoidance of doubt any termination of the Servicer’s sole cost and expenserights to service by the Buyer as a result of an Event of Default shall be deemed part of an exercise of the Buyer’s rights to cause the liquidation, to effect such Securitization. Subject to the terms and conditions termination or acceleration of this Agreement.
(h) For the avoidance of doubt, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect Seller retains no economic rights to the servicing of the Purchased Mortgage Loans provided that Seller shall continue to service the Purchased Mortgage Loans hereunder as part of its Obligations hereunder. As such, Seller expressly acknowledges that the Purchased Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact are sold to sign any documents reasonably required with respect to the administration and Buyer on a “servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholderreleased” basis.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to this Agreement and the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder Each Noteholder acknowledges that each Senior Note Holder Initial Noteholder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such Holderother Noteholder, at such Senior Note Holderother Noteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Trustee under the Securitization Servicing Agreement by the Depositor, and the appointment of the Special Servicer as the initial Special Servicer under the Servicing Agreement by the Depositor (subject to replacement by the Controlling Noteholder as provided herein) and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder Noteholders set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the any Servicer to enforce the rights of any Noteholder against any other Noteholder or limit the any Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder. Each Servicer shall be required pursuant to the Servicing Agreement to service the Mortgage Loan in accordance with the Servicing Standard, this Agreement, the terms of the Mortgage Loan Documents, the Servicing Agreement, any intercreditor agreement and applicable law, and shall not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.
(b) In no event The Subordinate Noteholder shall the Note B Holder not be entitled to exercise any rights of the “directing holder”, controlling or consulting class,” consulting “controlling class representative” or any analogous class or holder of Loan Specific Certificates (as defined in the Lead Securitization Servicing Agreement) under the Securitization Servicing Agreement except to the extent the Note B Holder Subordinate Noteholder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder, and in no event may any such “directing holder”, controlling or consulting class or analogous class or holder of certificates backed solely by Note A under the Servicing Agreement have any of the rights of the Controlling Noteholder hereunder except during a Control Appraisal Period.
(c) In no event may The Master Servicer shall be the lead master servicer on the Mortgage Loan, and from time to time it (or the Trustee, to the extent provided in the Lead Securitization Servicing Agreement) (i) shall be required to make Servicing Advances with respect to the Mortgage Loan, subject to the terms of the Lead Securitization Servicing Agreement change and this Agreement, and (ii) may be required to make principal and interest Advances on any Note in the interest allocable toLead Securitization, or if and to the amount of any payments due toextent provided in the Lead Securitization Servicing Agreement and this Agreement. The Master Servicer, the Note B-1 Holder Special Servicer and the Trustee, as applicable, will be entitled to reimbursement for a Servicing Advance, first from funds on deposit in each of the Collection Account and the Companion Distribution Account that (in any case) represent amounts received on or Note B-2 Holder in respect of the Mortgage Loan in the manner provided in the Lead Securitization Servicing Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, will be entitled to reimbursement for Advance Interest Amounts on a Servicing Advance or materially increase a Nonrecoverable Servicing Advance, in the Controlling Noteholder’s obligations or materially decrease manner and from the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect sources provided in the Controlling Noteholder’s rights hereunderLead Securitization Servicing Agreement.
(d) The At any time after the Securitization Servicing Agreement shall contain provisions Date that the Lead Securitization Note is no longer subject to the effect that:
(i) any payments received on provisions of the Servicing Agreement, the Lead Securitization Noteholder shall cause the Mortgage Loan shall to be paid by serviced in accordance with the Master Servicer to each of servicing provisions set forth in the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, Agreement as if such agreement was still in full force and the Master Servicer and the Special Servicer shall provide, any information, relating effect with respect to the Mortgage Loan; provided, however, that the Servicer under the Servicing Agreement shall have no further obligations to advance monthly payments of principal or interest; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan Borrower or may be performed by any nationally recognized commercial mortgage loan servicer appointed by Lead Securitization Noteholder and the Mortgaged Property as such Person may reasonably request special servicer appointed by the Controlling Noteholder and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required does not have to be provided to performed by the “Directing Certificateholder” or analogous term service providers set forth under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Agreement Between Noteholders (CF 2019-Cf2 Mortgage Trust)
Servicing. (a) Each Noteholder The Servicer shall service the Purchased Mortgage Loans in accordance with Accepted Servicing Practices (as defined in the Master Repurchase Agreement) and the Servicing Addendum. The Servicer shall not resign as servicer or transfer the servicing of any Purchased Mortgage Loan without the prior written consent of the Required Noteholders and the Standby Servicer. The Servicer shall not be permitted to resign unless a successor servicer has been appointed or the Standby Servicer has assumed the role of Servicer. If the Standby Servicer is unable or unwilling to act as successor Xxxxxxxx, it may petition a court of competent jurisdiction to appoint such successor. The Indenture Trustee shall provide the Rating Agency with written notice upon any resignation of the Servicer pursuant to Section 4.3. The Servicer shall hold or cause to be held all escrow funds collected with respect to the Purchased Mortgage Loans in accounts (each of which shall be an Eligible Account) for the Holders of the Notes and shall apply the same for the purposes for which such funds were collected. The Servicer will maintain all Servicing Records not in the possession of the Mortgage Loan Custodian in good and complete condition in accordance with industry practices for assets similar to the Purchased Mortgage Loans and preserve them against loss. On each Business Day, the Indenture Trustee shall electronically provide the Servicer with a schedule of Mortgage Loans subject to the Master Repurchase Agreement. In connection with the foregoing, the Servicer hereby acknowledges and agrees that, subject in each case to the terms of this Agreement, Servicer is servicing the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, Loans subject to the terms Master Repurchase Agreement for the benefit of Issuer and the Indenture Trustee, on behalf of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other NoteholderNoteholders.
(b) In no event Except as set forth below, the Servicer shall the Note B Holder be entitled to exercise any rights cause all Income received by it on account of the “directing holder” consulting class Purchased Mortgage Loans to be deposited in the Buyer’s Account within one (1) Business Day of receipt; provided, however, that, if the Standby Servicer is the Servicer, such amounts shall be deposited within two (2) Business Days of receipt. Notwithstanding the foregoing, following the occurrence and continuance of an Event of Default or any analogous class a Repo Trigger Event and a Trust Officer of the Indenture Trustee receiving written notice or holder under having actual knowledge of such an event, the Securitization Servicing Agreement except Indenture Trustee will direct the Servicer to remit all Income into the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling NoteholderPayment Account.
(c) In no event may The Payment Account shall only contain collections on the Securitization Servicing Agreement change Purchased Assets subject to this Indenture. As further provided in Section 5.1 hereof, the interest allocable toPayment Account shall be held at U.S. Bank National Association, in the name of and under the sole control of the Indenture Trustee. Neither the Seller nor the Servicer shall have any right to direct any disposition of funds from the Payment Account or the amount to give any instructions of any payments due tokind to the Indenture Trustee with respect to the Payment Account. Upon making any deposit into Payment Account, the Note B-1 Holder or Note B-2 Holder or materially increase Servicer shall provide the Controlling Noteholder’s obligations or materially decrease Indenture Trustee with the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect loan identification number and the Controlling Noteholder’s rights hereunderprincipal and interest attributable to such Mortgage Loan which shall have been deposited into the Payment Account.
(d) The Securitization Servicer shall service the Purchased Mortgage Loans for a term of thirty (30) days (the “Servicing Agreement Term”) commencing as of the date of the related initial Purchase Date. Each such Servicing Term shall contain provisions be deemed to the effect that:
be renewed or terminated. If such Servicing Term is not renewed (which is hereby deemed renewed unless (i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization a Servicing Agreement;
Termination Event has occurred and is continuing or (ii) if the Note B Holder Seller is the Servicer, a Repo Trigger Event under the Master Repurchase Agreement has occurred and is continuing), the Servicer agrees that the Indenture Trustee may terminate the Servicer as servicer hereunder at will and the Servicer shall transfer the servicing as described below.
(e) On each Reporting Date, the Servicer shall furnish to the Issuer, the Rating Agency and the Indenture Trustee the Asset Tape for the Purchased Mortgage Loans as of the last day of the calendar month preceding the related Reporting Date and a Monthly Servicer Report for such Reporting Date; provided, that, with respect to the first Reporting Date, the Asset Tape and the Monthly Servicer Report for the Purchased Mortgage Loans will be as of the Closing Date. Included in such Asset Tape shall be entitled to receivethe delinquency status of each Purchased Mortgage Loan without including in such determination any payment holidays or skip payments. If the Servicer should discover that, and for any reason whatsoever, the Master Servicer and the Special Servicer shall provide, or any information, relating entity responsible to the Servicer for managing or servicing any such Purchased Mortgage Loan has failed to perform fully the Servicer’s obligations under the Program Agreements or any of the obligations of such entities with respect to the Purchased Mortgage Loan, the Mortgage Loan Borrower Servicer shall promptly notify the Indenture Trustee and the Standby Servicer.
(f) Neither the Servicer nor those acting on the Servicer’s behalf shall amend, modify, or the Mortgaged Property as such Person may reasonably request and in the possession waive any term or condition of, or collected settle or known bycompromise any claim in respect of, any item of the Master Servicer or Special Servicer relating to the Purchased Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report Loans or any other information relating to the Special Servicer’s workout strategy related rights or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under Program Agreements without the Securitization Servicing Agreement and prior written consent of Holders of 66 2/3% of each Class of Notes, except if such action may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended taken without the consent of the Note B Holder any Holders if such amendment would action does not (i) affect the amount or timing of any payment of principal or interest payable with respect to a Purchased Mortgage Loan, extend its scheduled maturity date, modify its interest rate, or constitute a cancellation, reduction or discharge of its outstanding principal balance or (ii) materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed security afforded by the Master Servicer real property, furnishings, fixtures, or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean equipment securing such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisionsAsset.
(g) If The Indenture Trustee is not responsible for the Note B Holder exercises Servicer’s performance of its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holderobligations under this Indenture, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note Servicer is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration not an agent of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the NotesIndenture Trustee, and that in under no circumstances shall the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances Indenture Trustee be liable for any action or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration inaction of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Indenture (loanDepot, Inc.)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced serviced, prior to the Securitization Date Date, under interim servicing arrangements as directed by the Note A-1-1 A-1 Holder and and, from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 B Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 A-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 A-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 A-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, ; provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 A-1 Holder and approved by the Note B Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 A-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Companion Distribution Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Servicing. (a) Each Noteholder acknowledges The RHS-Approved Lender of each Guaranteed Mortgage purchased by Xxxxxx Xxx will be an approved Xxxxxx Xxx Multifamily seller/servicer or other RHS-Approved Lender. Xxxxxx Xxx reserves the right to assign servicing to a party other than the originating lender provided that such substitute servicer is an approved Xxxxxx Xxx Multifamily seller/service and agrees that, subject RHS-Approved Lender. Servicing shall be performed by the RHS-Approved Lender in each case accordance with the requirements of the applicable Xxxxxx Xxx Guide governing the product line under which Xxxxxx Xxx purchased the loan. Servicing in accordance with the governing Xxxxxx Xxx Guide for the loan type will be deemed to satisfy the requirement of section IV of the Lender’s Agreement that a servicing plan be designed and implemented. Notice by Xxxxxx Xxx or the originating RHS-Approved Lender to the terms of this Agreement, the Secretary that Xxxxxx Xxx has purchased a Guaranteed Mortgage Loan shall be serviced deemed notice to the Secretary that the Guaranteed Mortgage has been transferred to Xxxxxx Xxx. b) The Secretary may deal with and rely upon the RHS-Approved Lender of each Guaranteed Mortgage with respect to all servicing matters prior to the Securitization Date Secretary’s receipt from the RHS-Approved Lender or Xxxxxx Xxx of notice that a default has occurred under interim servicing arrangements as directed the Guaranteed Mortgage. Prior to the Secretary’s receipt of such notice, any notice with respect to a Guaranteed Mortgage that is given by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant Secretary to the Securitization Servicing Agreement; provided that applicable RHS-Approved Lender shall be deemed to have been given to Xxxxxx Xxx. Notwithstanding the Master Servicer foregoing, the Secretary shall give actual notice to both Xxxxxx Xxx and the RHS-Approved Lender on all issues pertaining to the adequacy of servicing performance and notice to the RHS-Approved Lender alone will not be obligated deemed to advance monthly payments of principal or interest in respect be notice to Xxxxxx Xxx on such issues. Without limiting the generality of the Notes other than foregoing, with respect to each Guaranteed Mortgage and the Notes included in Lender’s Agreement:
(1) Xxxxxx Xxx will pay the Lead Securitization annual RHS fee to RHS.
(2) The RHS-Approved Lender will prepare and each Nonfile with the Secretary all required reports.
(3) The RHS-Lead Master Servicer shall be Approved Lender will perform all required to advance physical inspections of the property securing the Guaranteed Mortgage and provide the Secretary and Xxxxxx Xxx with all required reports of such inspections.
(4) The RHS-Approved Lender will collect and process all monthly payments of principal and interest on the applicable Nonand all deposits to escrows for taxes, insurance, and other expenses for which Xxxxxx Xxx requires such escrows.
(5) The RHS-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate Approved Lender will pay all taxes, insurance premiums premiums, and other expenses related for which escrows are maintained.
(6) The RHS-Approved Lender will approve borrower requests for release of funds from reserve and escrow accounts, as referred to in section V(C)(2)(e) of the Lender’s Agreement. Xxxxxx Xxx servicing guidelines will determine the extent to which the RHS-Approved Lender must obtain Fannie Mae’s consent before taking action or, where authority to make such decisions is delegated by Xxxxxx Xxx to the maintenance RHS- Approved Lender, the standards the RHS-Approved Lender must apply in making such decisions. In no case will Xxxxxx Xxx preclude the RHS-Approved Lender’s compliance with Program requirements. (12-22-04) PN 381 Exhibit A Page 6
(7) The RHS-Approved Lender will obtain from the borrower and forward to the Secretary the financial statements of the Mortgaged Property borrower and maintenance any guarantor that are required by section V(C)(5) and enforcement (9) of the lien Lender’s Agreement using Xxxxxx Xxx Form 4254 Multifamily Financial Analysis of Operations Report (or such successor form as Xxxxxx Xxx will require for general use).
(8) The RHS-Approved Lender will file the quarterly loan status reports with the Secretary as required by section VI(C)(10) of the Mortgage thereon, subject to the terms Lender’s Agreement and section 7.10 of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder Handbook.
(9) If a default occurs, either the RHS-Approved Lender or Xxxxxx Xxx may elect, file a default notice with the Secretary as described in its sole discretion, to include section VI(A) of the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note HolderLender’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to as determined by Xxxxxx Xxx.
c) The inspection requirements contained in the appointment Xxxxxx Xxx Guides, including any changes that Xxxxxx Xxx may make in those requirements in the future, are accepted by the Secretary as the standards for physical inspections required by Chapter 7 of the Master ServicerHandbook.
d) Xxxxxx Xxx and its RHS-Approved Lenders share responsibility for negotiating workout arrangements and carrying out Foreclosures. As a result, Special Servicer and upon receipt of notice from Xxxxxx Xxx or the Trustee RHS- Approved Lender that a default has occurred under a Guaranteed Mortgage, the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate Secretary shall deal with the Master Servicer and entity that provided the Special Servicer notice of default with respect to that Guaranteed Mortgage. For notices provided by Xxxxxx Xxx, until Xxxxxx Xxx identifies for the Secretary the individual employee of Xxxxxx Xxx who will be responsible for special servicing of the Mortgage Loan in accordance with this Guaranteed Mortgage, the Secretary may direct any communications to the Xxxxxx Xxx notice address under section 13 hereof. The special servicing and liquidation requirements of the governing Xxxxxx Xxx Guide shall be deemed to constitute the special servicing plan required by section VI(C) of the Lender’s Agreement and any liquidation plan required by section VII(A) of the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints Lender’s Agreement and section 10.3 of the Master ServicerHandbook.
e) Upon curing of any default, unless Xxxxxx Xxx notifies the Secretary to the contrary, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorneyRHS-in-fact to sign any documents reasonably required with respect to the administration and Approved Lender will resume servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholderaffected Guaranteed Mortgage.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Memorandum of Understanding
Servicing. KBK hereby appoints Seller as servicing agent for KBK (a"Servicer") Each Noteholder acknowledges for the purpose of expediting the payment of accounts purchased by KBK hereunder which become past due. Servicer agrees to maintain an active, on-going and regular dialogue with each Account Debtor. Servicer further agrees to utilize all powers, influences and rights and take every action within its control in accordance with its customary practices and applicable law to expedite the collection of the accounts purchased by KBK which become past due and direct such payments in specie exclusively to the Authorized Remittance Address. Seller will furnish to KBK, upon request, any and all papers, documents, and records in its possession or control related to accounts purchased by KBK hereunder, or related to Seller's business relationship with the respective account debtors, and agrees to cooperate fully with KBK in all matters related to collection of accounts purchased by KBK hereunder. KBK reserves the right to terminate such servicing relationship at any time with or without cause and without notice to Servicer. Seller authorizes KBK to forward directly to account debtors statements or invoices on accounts purchased by KBK hereunder, and to request payment at such address or to such bank account as may be designated by KBK. Seller agrees that, if any payment is made to Seller on any account purchased by KBK from Seller hereunder, Seller (i) will hold such payment in trust for KBK, (ii) will not commingle such payment with any funds of Seller, and (iii) will deliver such payment to KBK, in the exact form received, by the close of business on the next business day following receipt thereof by Seller. If any goods relating to an account purchased by KBK hereunder shall be returned to or repossessed by Seller, Seller shall give prompt notice thereof to KBK and shall hold such goods in trust for KBK, separate and apart from Seller's own property, and such goods shall be owned solely by KBK and be subject to KBK's direction and control. Seller shall properly store and protect such goods and agrees to cooperate fully with KBK in any subsequent disposition thereof for the benefit of KBK. 2 Seller authorizes to collect, sue for and give releaxxx for in the name of Seller or KBK in KBK's sole discretion, all amounts due on accounts sold to KBK hereunder. Seller specifically authorizes KBK to endorse, in the name of Seller, all checks, drafts, trade acceptances or other forms of payment tendered by account debtors in payment of accounts sold to KBK hereunder and made payable to Seller. KBK shall have no liability to Seller for any mistake in the application of any payment received with respect to any account, IT BEING THE SPECIFIC INTENT OF THE PARTIES HERETO THAT KBK SHALL HAVE NO LIABILITY HEREUNDER FOR ITS OWN NEGLIGENCE except for its own gross negligence or willful misconduct. Seller hereby waves notice of nonpayment of any account sold to KBK hereunder, as well as any and all other notices with respect to such accounts, demands or presentations for payment, and agrees that KBK may extend or renew from time to time the payment of, or vary or reduce the amount payable under or compromise any of the terms of, any account purchased by KBK, in each case without notice to or the terms consent of this AgreementSeller. Seller further authorizes KBK (or its designee) to open and remove the contents of any post office box of Seller of KBK (or its designee) which KBK believes contains mail relating to accounts, and in connection therewith or otherwise, to receive, open and dispose of mail addressed to Seller which KBK believes may relate to accounts, and in order to further assure receipt by KBK (or its designee) of mail relating to such accounts, to notify other parties including customers and postal authorities to change the Mortgage Loan shall be serviced prior address for delivery of such mail addressed to Seller to such address as KBK may designate. KBK agrees to use reasonable measures to preserve the Securitization Date under interim servicing arrangements as directed by contents of any such mail which does not relate to accounts purchased hereunder and to deliver same to Seller (or, at the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b))election of KBK, pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect notify Seller of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required address where Seller may take possession of such contents; provided, if Seller does not take possession o f such contents within 30 days after notice from KBK to advance monthly payments take possession thereof, KBK may dispose of principal and interest on the applicable Non-Lead Securitization Note pursuant such contents without any liability to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing AgreementSeller). The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder Seller hereby irrevocably appoints KBK (and any employee, agent or other person designated by KBK, any of whom may act without joinder of the Master Servicer, the Special Servicer and the Trustee in the Securitization others) as such Noteholder’s attorneySeller's attorneys-in-fact and agents, in Seller's name, place and stead, to sign take all actions, execute and deliver all notices, negotiate such instruments and other documents, as may be necessary or advisable to permit KBK (or its designee) to take any documents reasonably required with respect to the administration and servicing all of the Mortgage Loan on its behalf under actions described in this paragraph or to carry out the Securitization Servicing Agreement (subject at purpose and intent thereof, as fully and for all times to the rights of the Noteholder set forth herein intents and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity purposes as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receiveSeller could itself do, and the Master Servicer hereby ratifies and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person confirms all that said attorneys-in-fact and agents may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required door cause to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if done by virtue hereof. This power of attorney is irrevocable and deemed coupled with an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect theretointerest.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Account Transfer and Purchase Agreement (H E R C Products Inc)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to this Agreement and the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes Note A-1 and the Junior Note (if the Junior Note is included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing AgreementSecuritization) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder Junior Noteholder acknowledges that each Senior the Note A-1 Holder may elect, in its sole discretion, to include the related Senior Note A-1 in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such the Note A-1 Holder, at such Senior the Note A-1 Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder Noteholders set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder against any other Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder.
(b) In no event The then Controlling Noteholder shall the Note B Holder be entitled to exercise any notice and consent rights of the “directing holder,” consulting “directing certificateholder,” “controlling class,” “controlling class representative” or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder such Noteholder is given expressly prohibited from exercising such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder Controlling Noteholder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) if an event of default under the Servicing Agreement has occurred (A) with respect to the Master Servicer under the Servicing Agreement that affects a Noteholder or any class of commercial mortgage securities backed by a Note or a participation interest in a Note, and the Master Servicer is not otherwise terminated under the Servicing Agreement, then the Note B-1 Holder or its designees (if the Note B-1 Holder is the Controlling Noteholder) shall be entitled to direct the Trustee to appoint a sub-servicer solely with respect to the Mortgage Loan (or if the Mortgage Loan is currently being sub-serviced, to replace the current sub-servicer, but only if such original sub-servicer is in default under the related sub-servicing agreement); and (B) the appointment (or replacement) of a sub-servicer with respect to the Mortgage Loan, as contemplated in clause (A) above, will in any event be subject to written confirmation from each Rating Agency that such appointment would not, in and of itself, cause a downgrade, qualification or withdrawal of the then-current ratings assigned to the securities issued in connection with any Securitization;
(ii) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(iiiii) the Note B Holder Controlling Noteholder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provideprovide access to, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person the Controlling Noteholder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or the Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Lead Securitization Trust pursuant to the terms and conditions of the Servicing Agreement Agreement, including, but not limited to to, standard CREFC® reportsCREFC reports and Asset Status Reports, provided that if an interest in Note B the Controlling Noteholder or the related Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder Controlling Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Informationexcluded information” or analogous term under the Securitization Servicing Agreement;
(iiiiv) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(ivv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder Junior Noteholder if such amendment would materially and adversely affect its rights thereunder; and
(vi) the Special Servicer appointed by the Note B-1 Holder shall be named as the Special Servicer for the Mortgage Loan or under the Note B Holder’s rights with respect theretoServicing Agreement as of the closing of the Lead Securitization, as long as such Special Servicer satisfies the requirements of the Servicing Agreement.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Lead Securitization Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder Lead Securitization Noteholder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B HolderJunior Noteholder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder Lead Securitization Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder Lead Securitization Noteholder and the special servicer appointed by the Controlling Noteholder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees[Reserved.]
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes Note A-1 will be allocated by the Master Servicer between the Senior Notes, pro rata, to Note A-1 in accordance with their respective its principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holderamount.
(i) [Reserved.]
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder [Reserved.]
(including the related Non-Lead Depositor and related Non-Lead Trusteek) shall use commercially reasonable efforts to timely comply with any such filing[Reserved.]
Appears in 1 contract
Samples: Agreement Between Noteholders (GS Mortgage Securities Trust 2018-Gs10)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced pursuant to this Agreement and (i) prior to the Lead Securitization Date Date, under interim servicing arrangements as directed by the Note A-1-1 A Holder and from and (ii) after the Lead Securitization Date Date, the Servicing Agreement (except as otherwise set forth in Section 5(b2(j)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing AgreementAgreement (including a determination of recoverability thereunder). The Note B Holder Each Noteholder acknowledges that each Senior another Noteholder (including, in particular, the Note Holder A Holder) may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it willthat, subject to Section 2440 hereof, it will reasonably cooperate with such Holderother Noteholder, at such Senior Note Holderother Noteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Trustee under the Securitization Servicing Agreement by the Depositor, and the appointment of the Special Servicer as the initial Special Servicer under the Servicing Agreement by the Depositor (subject to replacement by the Controlling Noteholder as provided herein) and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.Servicing
Appears in 1 contract
Samples: Agreement Between Noteholders (Benchmark 2018-B5 Mortgage Trust)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to this Agreement and the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included for any Note in the Lead Securitization (and each a Non-Lead Master Servicer shall may be required to advance monthly payments of principal and interest on the applicable a Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Securitization Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property Properties and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing AgreementAgreement (including a determination of recoverability thereunder). The Note B Holder Each Noteholder acknowledges that each Senior Note Holder Initial Noteholder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such Holderother Noteholder, at such Senior Note Holderother Noteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Trustee under the Securitization Servicing Agreement by the Depositor, and the appointment of the Special Servicer as the initial Special Servicer under the Servicing Agreement by the Depositor (subject to replacement by the Controlling Noteholder as provided herein) and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder Noteholders set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the any Servicer to enforce the rights of any Noteholder against any other Noteholder or limit the any Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder. Each Servicer shall be required pursuant to the Servicing Agreement to service the Mortgage Loan in accordance with the Servicing Standard, this Agreement, the terms of the Mortgage Loan Documents, the Servicing Agreement, any intercreditor agreement and applicable law, and shall not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.
(b) In no event The Master Servicer shall be the lead master servicer on the Mortgage Loan, and from time to time it (or the Trustee, to the extent provided in the Lead Securitization Servicing Agreement) (i) shall be required to make Property Protection Advances with respect to the Mortgage Loan, subject to the terms of the Lead Securitization Servicing Agreement and this Agreement, and (ii) may be required to make principal and interest Advances on any Note B Holder in the Lead Securitization, if and to the extent provided in the Lead Securitization Servicing Agreement and this Agreement. The Master Servicer or Trustee shall be required to provide written notice to the Non-Lead Master Servicer and the Non-Lead Trustee of any principal and interest Advance it has made with respect to the Lead Securitization Note within two (2) Business Days of making such Advance. The Master Servicer, the Special Servicer and the Trustee, as applicable, will be entitled to exercise any rights reimbursement for a Property Protection Advance, first from funds on deposit in each of the “directing holder” consulting class Collection Account and the Companion Distribution Account that (in any case) represent amounts received on or any analogous class or holder under in respect of the Mortgage Loan in the manner provided in the Lead Securitization Servicing Agreement, and then, in the case of Nonrecoverable Property Protection Advances, if such funds on deposit in the Collection Account and Companion Distribution Account are insufficient, from general collections of the Lead Securitization as provided in the Lead Securitization Servicing Agreement except and from general collections of the Non-Lead Securitization as provided below. The Master Servicer, the Special Servicer and the Trustee, as applicable, will be entitled to reimbursement for Advance Interest Amounts on a Property Protection Advance or a Nonrecoverable Property Protection Advance, in the manner and from the sources provided in the Lead Securitization Servicing Agreement, including from general collections of the Lead Securitization and from general collections of the Non-Lead Securitization as provided below. Notwithstanding the foregoing, to the extent the Master Servicer, the Special Servicer or the Trustee, as applicable, obtains funds from general collections of the Lead Securitization as a reimbursement for a Nonrecoverable Property Protection Advance or any Advance Interest Amounts on a Property Protection Advance or a Nonrecoverable Property Protection Advance, the Non-Lead Securitization Noteholder (including from general collections or any other amounts from the Non-Lead Securitization Trust) shall be required to, promptly following notice from the Master Servicer, reimburse the Lead Securitization for its pro rata share of such Nonrecoverable Property Protection Advance or Advance Interest Amounts. If the Master Servicer or the Special Servicer determines that a proposed principal and interest Advance with respect to the Lead Securitization Note B Holder or Property Protection Advance with respect to the Mortgage Loan, if made, or any outstanding principal and interest Advance or Property Protection Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance (as defined in the Lead Securitization Servicing Agreement), the Master Servicer shall provide the Non-Lead Master Servicer written notice of such determination promptly after such determination was made together with such reports that were delivered to the Master Servicer, Special Servicer or Trustee, as applicable, in connection with notification of its determination of nonrecoverability. In addition, the Non-Lead Securitization Noteholder (including, but not limited to, the Non-Lead Securitization Trust) shall be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Lead Securitization for the Non-Lead Securitization Noteholder’s pro rata share of any additional trust fund expenses with respect to the Mortgage Loan or the Mortgaged Properties, any other fees, costs or expenses incurred in connection with the servicing and administration of the Mortgage Loan and allocable to the Noteholders pursuant to this Agreement and as to which the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor or the Depositor, as applicable, is given entitled to be reimbursed pursuant to the Lead Securitization Servicing Agreement, and any fees, costs or expenses related to obtaining a Rating Agency Confirmation and allocated to the Noteholders, in each case to the extent amounts on deposit in the Companion Distribution Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such rights expressly under amounts (which such reimbursement shall be made, if the Non-Lead Securitization Note has been included in a Non-Lead Securitization, from general collections or any other amounts from such Non-Lead Securitization Trust). The Non-Lead Securitization Noteholder agrees to indemnify (as and to the same extent the Lead Securitization Trust is required to indemnify each of the Indemnified Parties against any Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Companion Distribution Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Securitization Noteholder shall be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse each of the applicable Indemnified Parties for its pro rata share of the insufficiency (including, if the Non-Lead Securitization Note has been included in a Non-Lead Securitization, from general collections or any other amounts from such Non-Lead Securitization Trust). The Non-Lead Master Servicer may be required to make principal and interest Advances on a Non-Lead Securitization Note, from time to time, subject to the terms of the Non-Lead Securitization Servicing Agreement, the Lead Securitization Servicing Agreement and this Agreement Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to make their own recoverability determination with respect to a principal and interest Advance to be made on the Lead Securitization Note based on the information that they have on hand and in accordance with the Lead Securitization Servicing Agreement. The Non-Lead Master Servicer and the Non-Lead Special Servicer and the Non-Lead Trustee, as applicable, shall be entitled to make their own recoverability determination with respect to a principal and interest Advance to be made on a Non-Lead Securitization Note based on the information that they have on hand and in accordance with the Non-Lead Securitization Servicing Agreement. The Master Servicer and the Trustee, as applicable, and the Non-Lead Master Servicer or the Non-Lead Trustee shall be required to notify each other servicer and trustee with respect to a Securitization of the amount of its principal and interest Advance within two (2) Business Days of making such Advance. If the Master Servicer, the Special Servicer or the Trustee, as applicable (with respect to the Lead Securitization Note) or the Non-Lead Master Servicer, the Non-Lead Special Servicer or the Non-Lead Trustee, as applicable (with respect to a Non-Lead Securitization Note), determines that a proposed principal and interest Advance, if made, would be non-recoverable or an outstanding principal and interest Advance is or would be non-recoverable, or if the Master Servicer, the Special Servicer or the Trustee, as applicable, subsequently determines that a proposed Property Protection Advance would be non-recoverable or an outstanding Property Protection Advance is or would be non-recoverable, then the Master Servicer or the Trustee (as provided in the Lead Securitization Servicing Agreement, in the case of a determination of non-recoverability by the Master Servicer, the Special Servicer or the Trustee) or the Non-Lead Master Servicer or the Non-Lead Trustee (as provided in the Non-Lead Securitization Servicing Agreement, in the case of a determination of non-recoverability by the Non-Lead Master Servicer, the Non-Lead Special Servicer or the Non-Lead Trustee) shall notify the Master Servicer and the Trustee, or the Non-Lead Master Servicer and the Non-Lead Trustee, as the case may be, within two (2) Business Days of making such determination. Each of the Master Servicer, the Trustee, the Non-Lead Master Servicer and the Non-Lead Trustee, as applicable, will only be entitled to reimbursement for a principal and interest Advance that becomes non-recoverable and Advance Interest Amounts thereon first from the Collection Account or the Companion Distribution Account from amounts allocable to the Mortgage Loan for which such principal and interest Advance was made, and then, if funds are insufficient, (i) in the case of the Lead Securitization Note, from general collections of the Lead Securitization Trust, pursuant to the terms of the Lead Securitization Servicing Agreement and (ii) in its capacity the case of the Non-Lead Securitization Note, from general collections of the Non-Lead Securitization Trust, as and to the Controlling Noteholderextent provided in the Non-Lead Securitization Servicing Agreement.
(c) In At any time after the Lead Securitization Date that the Lead Securitization Note is no event may longer subject to the provisions of the Lead Securitization Servicing Agreement, the Lead Securitization Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Lead Securitization Servicing Agreement change or a Substitute Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan; provided, however, that the Servicer under the Lead Securitization Servicing Agreement shall have no further obligations to advance monthly payments of principal or interest allocable toexcept as specifically agreed to by the Servicer; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Lead Securitization Noteholder and the special servicer appointed by the Controlling Noteholder and does not have to be performed by the service providers set forth under the Lead Securitization Servicing Agreement; provided, further, however, that until a replacement servicing agreement has been entered into, if a Non-Lead Securitization Note becomes the subject of an Asset Review pursuant to the related Non-Lead Securitization Servicing Agreement, the Master Servicer, the Special Servicer, the Trustee and the Custodian shall reasonably cooperate with the Non-Lead Asset Representations Reviewer in connection with such Asset Review by providing the Non-Lead Asset Representations Reviewer with any documents reasonably requested by the Non-Lead Asset Representations Reviewer, but only to the extent (x) such documents are in the possession of the Master Servicer, the Special Servicer, the Trustee or the amount of any payments due toCustodian, as the Note B-1 Holder or Note B-2 Holder or materially increase case may be, and (y) the Controlling Noteholder’s obligations or materially decrease Non-Lead Asset Representations Reviewer has not been able to obtain such documents from the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunderrelated mortgage loan seller.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(fe) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization The Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) if an event of default under the Servicing Agreement has occurred (A) with respect to the Master Servicer under the Servicing Agreement that affects a Noteholder or any class of commercial mortgage securities backed by a Note, and the Master Servicer is not otherwise terminated under the Servicing Agreement, then the Non-Lead Securitization Note Holder Noteholders shall be responsible for its pro rata share of any Servicing Advances entitled to direct the Trustee to appoint a sub-servicer solely with respect to the Mortgage Loan (and advance interest thereon) and any additional trust fund expensesor if the Mortgage Loan is currently being sub-serviced, to replace the current sub-servicer, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that if such original sub-servicer is in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established default under the Nonrelated sub-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Propertyagreement), ; and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account appointment (or equivalent accountreplacement) established under the Nonof a sub-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses servicer with respect to the Mortgage Loan, as contemplated in clause (A) above, will in any event be subject to written confirmation from each Rating Agency that such appointment would not, in and of itself, cause a downgrade, qualification or withdrawal of the then-current ratings assigned to the securities issued in connection with any Securitization;
(ii) any payments received on the Mortgage Loan shall be paid by the Master Servicer (a) to each of the Noteholders (other than the Non-Lead Securitization Trust, against any Noteholders) on the “master servicer remittance date” under the Servicing Agreement and (b) by the earlier of (x) the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit Master Servicer Remittance Date (as defined in the Whole Loan Custodial Account that are allocated to Lead Securitization Servicing Agreement) and (y) the Business Day following the “determination date” (or any term substantially similar thereto) as defined in the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.each cas
Appears in 1 contract
Samples: Agreement Between Noteholders (BMO 2024-5c8 Mortgage Trust)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by pursuant to the Note A-1-1 Holder Interim Servicing Agreement and from and after the Securitization Date (except as otherwise set forth in Section 5(b2(e)), pursuant to the Securitization Servicing Agreement and, in each case, in accordance with this Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) A if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder Each Noteholder acknowledges that each Senior the Note A Holder and the Note B-1 Holder may elect, in its sole discretion, to include the related Senior its Note in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such Holdera securitizing Noteholder, at such Senior Note Holderthe securitizing Noteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, the Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with and consent with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement and this Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the such Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder against any other Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder.
(b) In no event The Controlling Noteholder (or any Controlling Noteholder Representative appointed by it acting on its behalf) shall exercise the Note B Holder be entitled rights and powers granted to exercise any rights of the “directing holderControlling Holder”, “Directing Certificateholder” consulting class or any analogous class “Directing Holder” (or holder similar term) under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as with respect to the Controlling NoteholderMortgage Loan.
(c) The Securitization Servicing Agreement shall contain the Servicing Standard (which shall require, among other things, that each Servicer, in servicing the Mortgage Loan, must take into account the interests of each Noteholder, taking into account that (1) Note B-2 is junior to Note B-1 and (2) Note B-1 is junior to Note A). In no event may the Securitization Servicing Agreement change the interest or principal allocable to, or the amount of any payments due to, the Note B-1 Holder or the Note B-2 Holder or materially increase the Controlling NoteholderNote B-1 Holder’s or the Note B-2 Holder’s obligations or materially decrease the Controlling NoteholderNote B-1 Holder’s or the Note B-2 Holder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders in accordance with Sections 3 and 4 hereof on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) each of the Note B B-1 Holder and the Note B-2 Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower borrower or the Mortgaged Property as such Person either the Note B-1 Holder or the Note B-2 Holder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Securitization Servicing Agreement Trust that includes other Notes including but not limited to standard CREFC® reports, provided that if an interest in Note B B-1 or Note B-2 or the Note B B-1 Holder or the Note B-2 Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder such Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B B-1 Holder or the Note B-2 Holder if such amendment would materially and adversely affect the Mortgage Loan or the rights of the Note B B-1 Holder or the Note B-2 Holder’s rights , as applicable, with respect theretothereto (as determined by the Note B-1 Holder or Note B-2 Holder, as applicable).
(e) Notwithstanding anything to the contrary contained in this Agreement, any Any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the none of Note A-1-1 A and Note B-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 A Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement mutually agreeable to the Note A Holder, the Note B-1 Holder and the Note B-2 Holder that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders B-1 Holder and Note B B-2 Holder, as applicable, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 A Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by the Note A-1-1 A Holder with the consent of the Note B-1 Holder and the Note B-2 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Co Lender Agreement (CSAIL 2018-Cx12 Commercial Mortgage Trust)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by pursuant to the Note A-1-1 Holder Interim Servicing Agreement and from and after the Securitization Date (except as otherwise set forth in Section 5(b2(e)), pursuant to the Securitization Servicing Agreement and, in each case, in accordance with this Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes Note(s) included in the Lead Securitization (and each Non-Lead Master Servicer shall not be required to advance monthly payments of principal and interest on in respect of the Notes other than the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing AgreementSenior Note) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder Each Noteholder acknowledges that each a Senior Noteholder or the Note A-B Holder may elect, in its sole discretion, to include the related its Senior Note or Note A-B in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such Senior Noteholder or Note A-B Holder, at such Senior Noteholder’s or Note A-B Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, the Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with and consent with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement and this Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the such Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer be required to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder.
(b) In no event The Controlling Noteholder (or any Controlling Noteholder Representative appointed by it acting on its behalf) shall exercise the Note B Holder be entitled rights and powers granted to exercise any rights of the “directing holderControlling Holder”, “Directing Certificateholder” consulting class or any analogous class “Directing Holder” (or holder similar term) under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as with respect to the Controlling NoteholderMortgage Loan.
(c) The Securitization Servicing Agreement shall contain the Servicing Standard (which shall require, among other things, that each Servicer, in servicing the Mortgage Loan, must take into account the interests of each Noteholder, taking into account that Note A-B is junior to the Senior Notes). In no event may the Securitization Servicing Agreement change the interest or principal allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder any Noteholder or materially increase the Controlling any Noteholder’s obligations or materially decrease the Controlling any Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders in accordance with Sections 3 and 4 hereof on the “master servicer remittance date” under the Securitization Servicing AgreementMaster Servicer Remittance Date;
(ii) each of the Note B Holder Noteholders shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person a Noteholder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Securitization Servicing Agreement Trust that includes other Notes, including, but not limited to standard CREFC® reports, provided subject to limitations on information that if an interest in Note B or the Note B Holder may be made available to a Noteholder that is held by the a Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note A-B Holder (not to be unreasonably withheld) if such amendment would materially and adversely affect the Mortgage Loan or the Note A-B Holder’s rights with respect thereto;
(v) provide that any inconsistency between the Servicing Agreement and this Agreement shall be governed by and determined in accordance with the terms of this Agreement; and
(vi) recognize the respective rights and obligations of the Noteholders hereunder, including with respect to the making of payment to the Noteholders and the rights of the Noteholders to approve matters and make decisions hereunder.
(e) Notwithstanding anything to the contrary contained in this Agreement, any Any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) Each Noteholder agrees to pay its Percentage Interest of (i) any servicing Advances and any interest accrued and payable on such Advances at the Advance Rate and (ii) any trust fund expenses and any other fees, costs or expenses incurred in connection with the servicing and administration of the Mortgage Loan (including, without limitation, any costs, fees and expenses related to obtaining any Rating Agency Confirmation and 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 servicing and administration of the Mortgage Loan and the Mortgaged Property under the Securitization Servicing Agreement) in accordance with the Securitization Servicing Agreement and this Agreement to the extent that such amounts remain unpaid or unreimbursed after funds received from the Mortgage Loan Borrower for payment of such amounts and any principal and interest collections allocable to Note A-B has been applied to pay such amounts.
(g) At any time after the Securitization Date that the Lead Senior Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder Lead Senior Noteholder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement mutually agreeable to the Non-Lead Senior Noteholders and the Note A-B Holder that contains servicing provisions which are the same as or more favorable to the NonNote A-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that (1) if any Non-Lead Senior Note is in a Securitization, then Rating Agency Confirmation shall have been obtained from each Rating Agency with respect to such subsequent servicing agreement and (2) until a replacement servicing agreement has been entered into, (x) the Note A-1-1 Holder Lead Senior Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, Loan and (y) the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by the Lead Senior Noteholder with the consent of the Note A-1A-1 B Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Upon the occurrence of the Lead Securitization, the Lead Senior Noteholder shall give each other Noteholders (and the applicable servicer and trustee, if any other Note is in a Securitization) notice of the Lead Securitization in writing (which may be by e- mail) prior to or promptly following the related Securitization Date. Such notice shall contain contact information for each of the parties to the related Securitization Servicing Agreement and the identity of the controlling class representative under such Securitization Servicing Agreement. In addition, after the closing of the Lead Securitization, the Lead Senior Noteholder shall send a copy of the Securitization Servicing Agreement to each of the other holders.
(i) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under contain the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, provisions set forth in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.Schedule I.
Appears in 1 contract
Samples: Co Lender Agreement (Benchmark 2019-B12 Mortgage Trust)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced pursuant to this Agreement and (i) prior to the Lead Securitization Date Date, under interim servicing arrangements as directed by the Note A-1-1 A Holder and from and (ii) after the Lead Securitization Date (except as otherwise set forth in Section 5(b))Date, pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing AgreementAgreement (including a determination of recoverability thereunder). The Note B Holder Each Noteholder acknowledges that each Senior Note Holder another Noteholder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such Holderother Noteholder, at such Senior Note Holderother Noteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Trustee under the Securitization Servicing Agreement by the Depositor, and the appointment of the Special Servicer as the initial Special Servicer under the Servicing Agreement by the Depositor (subject to replacement by the Controlling Noteholder as provided herein) and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder Noteholders set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the any Servicer to enforce the rights of any Noteholder against any other Noteholder or limit the any Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder. Each Servicer shall be required pursuant to the Servicing Agreement to service the Mortgage Loan in accordance with the Servicing Standard, the terms of the Mortgage Loan Documents, the Servicing Agreement and applicable law, and shall not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.
(b) In no event shall the Note B Holder any Subordinate Noteholder be entitled to exercise any rights of the “directing holder” ”, controlling or consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder such Subordinate Noteholder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder, and in no event may any such “directing holder”, controlling or consulting class or analogous class or holder under the Servicing Agreement have any of the rights of the Controlling Noteholder hereunder except during a Control Appraisal Period.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder any Subordinate Noteholder or materially increase the Controlling any Subordinate Noteholder’s obligations or materially decrease the Controlling any Subordinate Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling any Subordinate Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(fe) At any time after the Securitization Date that the Lead Securitization Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder Lead Securitization Noteholder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holdereach Subordinate Noteholder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder Lead Securitization Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, ; provided, however, that the Servicer under the Securitization such replacement Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agencyadvance monthly payments of principal and interest; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer meeting the requirements of the Servicing Agreement appointed by Note A-1-1 Holder the Lead Securitization Noteholder and the special servicer appointed by the Controlling Noteholder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Agreement Between Noteholders (Benchmark 2019-B12 Mortgage Trust)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case Pursuant to the terms of this Servicing Agreement, the Mortgage Loan shall be serviced prior Debtor has contracted with General Electric Capital Corporation ("GECC") to act as servicer to manage, collect and administer each of the Receivables. Until such time as GECC is terminated as servicer under the Servicing Agreement, references to the Securitization Date Servicer herein shall refer to GECC as servicer under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include In the related Senior Note in event of a Securitization and agrees that it will, subject Servicer Event of Default pursuant to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions 8.01 of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event , the Debtor, shall upon the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights written direction of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable toSurety Bond Provider, or the amount of any payments due tomay, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without with the consent of the Note B Holder if Surety Bond Provider, terminate GECC as Servicer thereunder, but in any event shall notify Moody's and S&P of such amendment would materially and adversely affect Servicer Event of Default. The Surety Bond Pxxxxxxx shall also have the Mortgage Loan or right to remove the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to Servicer for cause, which shall include the contrary contained in this Agreement, material breach of any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in covenant under the Servicing Agreement.
(f) At any time after . Upon the Securitization Date that the Note A-1-1 is no longer subject to the provisions termination of GECC as servicer of the Securitization Receivables pursuant to either Section 8.01 or Section 9.02 of the Servicing Agreement, the Note A-1-1 Holder Surety Bond Provider, shall (i) cause have the Mortgage Loan right to be serviced pursuant to appoint a successor servicer and the Debtor shall enter into a servicing agreement that contains servicing provisions which are the same as or more favorable with such successor servicer in form and substance acceptable to the NonSurety Bond Provider, with such successor servicer acceptable to the Surety Bond Provider at such time. Such appointment shall be subject to the consent of the Debtor, which consent shall not be unreasonably withheld; PROVIDED, HOWEVER, that if a Termination Event shall have occurred and be continuing, or an event has occurred which, but for the passage of time or the giving of notice would constitute a Termination Event, Wind-Controlling Note Holders Down Event or Amortization Event, the consent of the Debtor shall not be required. Such servicing agreement shall specify the duties and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreementobligations of such successor servicer, and all references herein to the “Securitization Servicing Agreement” Servicer shall mean be deemed to refer to such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisionssuccessor servicer.
(gb) If There shall be established on the Note B Holder exercises its purchase option Closing Date and maintained, for the benefit of the Secured Parties, in accordance with Section 12 hereofthe trust department of the Collateral Agent, upon a segregated account (the Mortgage Loan being transferred "COLLECTION ACCOUNT"), bearing a designation clearly indicating that all of the funds deposited therein are held for the benefit of the Secured Parties. Funds on deposit in the Collection Account (other than investment earnings) shall be invested by the Collateral Agent at the direction of the Debtor in Eligible Investments that will mature so that such funds will be available prior to the Note B Holdernext succeeding Remittance Date, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent except that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses funds representing Collections with respect to a succeeding Collection Period, such Eligible Investments may mature so that such funds will be available no later than the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items Business Day prior to the extent of its pro rata share of Remittance Date for such Indemnified Items, and to the extent amounts Collection Period. Any funds on deposit in the Whole Loan Custodial Collection Account that are allocated to be so invested shall be invested solely in Eligible Investments. On each Remittance Date, all interest and earnings (net of losses and investment expenses) on funds on deposit in the Collection Account shall be available to make any payments required hereunder and shall be distributed pursuant to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, priorities set forth in Section 5.1.
(c) The Debtor shall cause GECC as servicer under the Non-Lead Master Servicer will be required Servicing Agreement to reimburse each deposit all Collections in the Collection Account no later than ten (10) Business Days after the end of the applicable Indemnified Parties for related Collection Period (LESS the Non-Lead Securitization Note’s pro rata share fees and expenses of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master GECC as Servicer will be required to deliver to the Trusteewhich GECC, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under Agreement, is permitted to withhold from amounts remitted to the Non-Lead Servicing Agreement; and
(v) Debtor or the Master ServicerCollateral Agent), but in any event, on or before the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries 14th day of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to month following the related Non-Lead Securitization Note HolderCollection Period.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Security Agreement (First Investors Financial Services Group Inc)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by pursuant to the Note A-1-1 Holder Interim Servicing Agreement and from and after the Securitization Date (except as otherwise set forth in Section 5(b2(f)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Senior Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder Junior Noteholder acknowledges that each the Senior Note Holder Noteholder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such Holderthe Senior Noteholder, at such the Senior Note HolderNoteholder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with and consent with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event The Junior Noteholder shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder Junior Noteholder is given expressly prohibited from exercising such rights expressly right under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) if an event of default under the Securitization Servicing Agreement has occurred (A) with respect to the Master Servicer under the Securitization Servicing Agreement that affects a Noteholder or any class of commercial mortgage securities backed by a Note or a participation interest in a Note, and the Master Servicer is not otherwise terminated under the Securitization Servicing Agreement, then the Junior Noteholder or its’ designees (if the Junior Noteholder is the Controlling Holder) shall be entitled to direct the Trustee to appoint a sub-servicer solely with respect to the Mortgage Loan (or if the Mortgage Loan is currently being sub-serviced, to replace the current sub-servicer, but only if such original sub-servicer is in default under the related sub-servicing agreement); and (B) the appointment (or replacement) of a sub-servicer with respect to the Mortgage Loan, as contemplated in clause (A) above, will in any event be subject to written confirmation from each Rating Agency that such appointment would not, in and of itself, cause a downgrade, qualification or withdrawal of the then-current ratings assigned to the securities issued in connection with any Securitization;
(ii) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(iiiii) the Note B Holder Junior Noteholder for so long as it is the Controlling Noteholder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower borrower or the Mortgaged Property as such Person the Controlling Noteholder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Securitization Servicing Agreement Trust that includes other Notes but not limited to standard CREFC® CREFC reports, provided that if an interest in the Junior Note B or the Note B Holder Junior Noteholder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder Junior Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreementstrategy;
(iiiiv) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(ivv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder Junior Noteholder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s its rights with respect theretothereunder.
(ed) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(fe) At any time after the Securitization Date that the Senior Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder Senior Noteholder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B HolderJunior Noteholder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder Senior Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder Senior Noteholder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Agreement Between Noteholders (Benchmark 2021-B25 Mortgage Trust)
Servicing. (a) Each Noteholder acknowledges and agrees that, subject in each case to the terms of this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to this Agreement and the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization Note A-1 (and each any Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note A-2 or Note A-3, as applicable, pursuant to the terms of the related Non-Lead Securitization Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder Each Junior Noteholder acknowledges that each Senior Note Holder Noteholder may elect, in its sole discretion, to include the related its Senior Note in a Securitization and agrees that it will, subject to Section 24, will reasonably cooperate with such Holderthe applicable Senior Noteholder, at such Senior Note Holder’s Noteholder’s, sole cost and expenseexpense (including, without limitation, attorney’s fees), to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this the Servicing Agreement and the Securitization Servicing terms and provisions of this Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder Noteholders set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder against any other Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the any other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the any other Noteholder.
(b) In no event The then Controlling Noteholder shall the Note B Holder be entitled to exercise any notice and consent rights of the “directing holder,” consulting “directing certificateholder,” “controlling class,” “controlling class representative” or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder such Noteholder is given expressly prohibited from exercising such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount or timing of any payments due to, the Note B-1 Holder or Note B-2 Holder Controlling Noteholder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) if an event of default under the Servicing Agreement has occurred (A) with respect to the Master Servicer under the Servicing Agreement that affects a Noteholder or any class of commercial mortgage securities backed by a Note or a participation interest in a Note, and the Master Servicer is not otherwise terminated under the Servicing Agreement, then the Junior Noteholders or the Junior Operating Advisor acting on behalf of the Junior Noteholders (if the Junior Noteholders are the Controlling Noteholder) shall be entitled to direct the Trustee to appoint a sub-servicer solely with respect to the Mortgage Loan (or if the Mortgage Loan is currently being sub-serviced, to replace the current sub-servicer, but only if such original sub-servicer is in default under the related sub-servicing agreement); and (B) the appointment (or replacement) of a sub-servicer with respect to the Mortgage Loan, as contemplated in clause (A) above, will in any event be subject to written confirmation from each Rating Agency that such appointment would not, in and of itself, cause a downgrade, qualification or withdrawal of the then-current ratings assigned to the securities issued in connection with any Securitization;
(ii) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(iiiii) the Note B Holder Controlling Noteholder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provideprovide access to, any information, information relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person the Controlling Noteholder may reasonably request and is or would be customarily in the possession of, or collected or known by, the Master Servicer or the Special Servicer relating of mortgage loans similar to the Mortgage Loan and, in any event, all information that is provided and that is required to be provided to holders of the “Directing Certificateholder” or analogous term under securities issued by the Lead Securitization Servicing Agreement Trust that includes other Notes but not limited to standard CREFC® reportsCREFC reports and Asset Status Reports, provided that if an interest in Note B the Controlling Noteholder or the related Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related PartyParty Affiliate, then the Note B Holder Controlling Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreementstrategy;
(iiiiv) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and;
(ivv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder each Noteholder if such amendment would materially and adversely affect its rights thereunder; and
(vi) the Special Servicer appointed by the Junior Noteholders shall be named as the Special Servicer for the Mortgage Loan or under the Note B Holder’s rights with respect theretoServicing Agreement as of the closing of the Lead Securitization, as long as such Special Servicer satisfies the requirements of the Servicing Agreement.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Lead Securitization Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder Lead Securitization Noteholder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B HolderJunior Noteholders, in substance, to those in the Servicing Agreement (including, without limitation, all applicable provisions relating to delivery of information and reports necessary for any Non-Lead Securitization Servicing Agreementto comply with any applicable reporting requirements under the Securities Exchange Act of 1934, and (iias amended) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a any Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating AgencyAgency with respect to such subsequent servicing agreement; provided, further, however, that until a replacement servicing agreement has been entered into, the Lead Securitization Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder Lead Securitization Noteholder and the special servicer appointed by the Controlling Noteholder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note HolderNoteholder agrees that, if its the related Non-Lead Securitization Note is included in a Securitization, it shall cause the applicable Non-Lead Securitization Servicing Agreement to contain provisions to the effect that:
(i) the related Non-Lead Securitization Note Holder Noteholder shall be responsible for its pro rata share of any Servicing Property Protection Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Property Protection Advances or additional trust fund expenses, (A) the related Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the related Non-Lead Securitization Note HolderServicing Agreement for such Non-Lead Securitization Noteholder’s pro rata share of any such Nonrecoverable Servicing Property Protection Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the related Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the related Non-Lead Securitization Note HolderServicing Agreement for such Non-Lead Securitization Noteholder’s pro rata share of any such Nonrecoverable Servicing Property Protection Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 the Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the related Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the related Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the related Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the related Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the related Non-Lead Securitization Servicing Agreement;
(iii) the related Non-Lead Master Servicer Certificate Administrator will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Certificate Administrator’s receipt of notice of the Securitization of the related Non-Lead Securitization Note, notice of the deposit of the related Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the related Non-Lead Master Servicer, the special servicer related Non-Lead Special Servicer and the party designated to exercise the rights of the related “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the such executed Non-Lead Securitization Servicing Agreement and (ii) notice of any subsequent change in the identity of the related Non-Lead Master Servicer or the party designated to exercise the rights of the related “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the each Non-Lead Securitization Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(ih) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the among each Senior NotesNote, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note A-2 to the related Non-Lead Securitization Note A-2 Holder and in respect of Note A-3 to the Note A-3 Holder, as applicable.
(ji) In the event any filing is required to be made by any Non-Lead Depositor under the related Non-Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder Noteholder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
(j) Each Non-Lead Securitization Noteholder shall give each of the parties to the Servicing Agreement and the Junior Noteholders (that will not also be a party to the related Non-Lead Securitization Servicing Agreement) notice of the Non-Lead Securitization in writing (which may be by e-mail) promptly after the related Non-Lead Securitization Date. Such notice shall contain contact information for each of the parties to the related Non-Lead Securitization Servicing Agreement. In addition, after the related Non-Lead Securitization Date, the related Non-Lead Securitization Noteholder shall send a copy of the related Non-Lead Securitization Servicing Agreement to each of the parties to the Servicing Agreement and the Junior Noteholders.
(k) If a Non-Lead Securitization Note becomes the subject of an Asset Review pursuant to the related Non-Lead Securitization Servicing Agreement, the Master Servicer, the Special Servicer, the Trustee and the Custodian shall reasonably cooperate at the Non-Lead Securitization Note Holder’s expense with such Non-Lead Asset Representations Reviewer in connection with such Asset Review by providing such Non-Lead Asset Representations Reviewer with any documents reasonably requested by such Non-Lead Asset Representations Reviewer, but only to the extent that such documents are in the possession of the Master Servicer, the Special Servicer, the Trustee or the Custodian, as the case may be, and are not in the possession of the Non-Lead Asset Representations Reviewer (and the Non-Lead Asset Representations Reviewer has informed such party that it has first requested, and not received, the documents from the Non-Lead Master Servicer, the Non-Lead Special Servicer and the Non-Lead Custodian).
Appears in 1 contract
Samples: Agreement Between Noteholders (GS Mortgage Securities Trust 2017-Gs6)
Servicing. (a) Each Noteholder The Servicer shall service the Purchased Mortgage Loans in accordance with Accepted Servicing Practices (as defined in the Master Repurchase Agreement) and the Servicing Addendum. The Servicer shall not resign as servicer or transfer the servicing of any Purchased Mortgage Loan without the prior written consent of the Required Noteholders and the Standby Servicer. The Servicer shall not be permitted to resign unless a successor servicer has been appointed or the Standby Servicer has assumed the role of Servicer. If the Standby Servicer is unable to act as successor Servicer, it may petition a court of competent jurisdiction to appoint such successor. The Indenture Trustee shall provide the Rating Agency with written notice upon any resignation of the Servicer pursuant to Section 4.3. The Servicer shall hold or cause to be held all escrow funds collected with respect to the Purchased Mortgage Loans in trust accounts (each of which shall be an Eligible Account) in trust for the Holders of the Notes and shall apply the same for the purposes for which such funds were collected. The Servicer will maintain all Servicing Records not in the possession of the Mortgage Loan Custodian in good and complete condition in accordance with industry practices for assets similar to the Purchased Mortgage Loans and preserve them against loss. On each Business Day, the Indenture Trustee shall electronically provide the Servicer with a schedule of Mortgage Loans subject to the Master Repurchase Agreement. In connection with the foregoing, the Servicer hereby acknowledges and agrees that, subject in each case to the terms of this Agreement, Servicer is servicing the Mortgage Loan shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, Loans subject to the terms Master Repurchase Agreement for the benefit of Issuer and the Indenture Trustee, on behalf of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other NoteholderNoteholders.
(b) In no event Except under the circumstances specified in Section 5.2(c), the Servicer shall the Note B Holder be entitled to exercise any rights cause all Income received by it on account of the “directing holder” consulting class or any analogous class or holder Purchased Mortgage Loans to be deposited in the Buyer’s Account within one (1) Business Day of receipt; provided, however, that, if the Standby Servicer is the Servicer, such amounts shall be deposited within two (2) Business Days of receipt. The Payment Account shall only contain collections on the Purchased Assets subject to this Indenture. As further provided in Section 5.1 hereof, the Payment Account shall be held at U.S. Bank National Association, in the name of and under the Securitization Servicing Agreement except sole control of the Indenture Trustee. Neither the Seller nor the Servicer shall have any right to direct any disposition of funds from the Payment Account or to give any instructions of any kind to the extent Indenture Trustee with respect to the Note B Holder is given Payment Account. Upon making any deposit into Payment Account, the Servicer shall provide the Indenture Trustee with the loan identification number and the principal and interest attributable to such rights expressly under Mortgage Loan which shall have been deposited into the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling NoteholderPayment Account.
(c) In no event may The Servicer shall service the Securitization Purchased Mortgage Loans for a term of thirty (30) days (the “Servicing Term”) commencing as of the date of the related initial Purchase Date. Each such Servicing Term shall be deemed to be renewed or terminated. If such Servicing Term is not renewed (which is hereby deemed renewed unless (i) a Servicing Termination Event has occurred and is continuing or (ii) if the Seller is the Servicer, a Repo Trigger Event under the Master Repurchase Agreement change the interest allocable to, or the amount of any payments due tohas occurred and is continuing), the Note B-1 Holder or Note B-2 Holder or materially increase Servicer agrees that the Controlling Noteholder’s obligations or materially decrease Indenture Trustee may terminate the Controlling Noteholder’s rights, remedies or protections Servicer as servicer hereunder or otherwise adversely affect at will and the Controlling Noteholder’s rights hereunderServicer shall transfer the servicing as described below.
(d) The Securitization Servicing Agreement On each Reporting Date, the Servicer shall contain provisions furnish to the effect Issuer, the Rating Agency and the Indenture Trustee the Asset Tape for the Purchased Mortgage Loans as of the last day of the calendar month preceding the related Reporting Date and a Monthly Servicer Report for such Reporting Date; provided, that:
(i) any payments received on , with respect to the first Reporting Date, the Asset Tape and the Monthly Servicer Report for the Purchased Mortgage Loans will be as of the Closing Date. Included in such Asset Tape shall be the delinquency status of each Purchased Mortgage Loan shall be paid by without including in such determination any payment holidays or skip payments. If the Master Servicer should discover that, for any reason whatsoever, the Servicer or any entity responsible to each the Servicer for managing or servicing any such Purchased Mortgage Loan has failed to perform fully the Servicer’s obligations under the Program Agreements or any of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating obligations of such entities with respect to the Purchased Mortgage Loan, the Mortgage Loan Borrower Servicer shall promptly notify the Indenture Trustee and the Standby Servicer.
(e) Neither the Servicer nor those acting on the Servicer’s behalf shall amend, modify, or the Mortgaged Property as such Person may reasonably request and in the possession waive any term or condition of, or collected settle or known bycompromise any claim in respect of, any item of the Master Servicer or Special Servicer relating to the Purchased Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report Loans or any other information relating to the Special Servicer’s workout strategy related rights or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under Program Agreements without the Securitization Servicing Agreement and prior written consent of Holders of 66 2/3% of each Class of Notes, except if such action may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended taken without the consent of the Note B Holder any Holders if such amendment would action does not (i) affect the amount or timing of any payment of principal or interest payable with respect to a Purchased Mortgage Loan, extend its scheduled maturity date, modify its interest rate, or constitute a cancellation, reduction or discharge of its outstanding principal balance or (ii) materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed security afforded by the Master Servicer real property, furnishings, fixtures, or the Special Servicer, as applicable, as set forth in the Servicing Agreementequipment securing such Asset.
(f) At any time after The Indenture Trustee is not responsible for the Securitization Date that Servicer’s performance of its obligations under this Indenture, the Note A-1-1 Servicer is no longer subject to the provisions not an agent of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing AgreementIndenture Trustee, and (ii) cause under no circumstances shall the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A-1-1 Holder shall cause the Mortgage Loan to Indenture Trustee be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing liable for any action or inaction of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisionsServicer.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Indenture (loanDepot, Inc.)
Servicing. (a) Each Noteholder acknowledges Pursuant to the Servicing Agreement, the Debtor has contracted with First Investors Servicing Corporation (“FISC”) to act as servicer to manage, collect and agrees thatadminister each of the Receivables. Until such time as FISC is terminated as servicer under the Servicing Agreement, subject in each case references to the Servicer herein shall refer to FISC as servicer under the terms of this the Servicing Agreement. In the event of a Servicer Termination Event pursuant to Section 5.01 of the Servicing Agreement, the Mortgage Loan Debtor, shall upon the written direction of the Surety Bond Provider, or may, with the consent of the Surety Bond Provider, terminate FISC as Servicer thereunder, but in any event shall notify Xxxxx’x and S&P of such Servicer Termination Event. Upon the termination of FISC as servicer of the Receivables pursuant to Section 5.01 of the Servicing Agreement, a successor servicer shall be serviced prior to the Securitization Date under interim servicing arrangements as directed by the Note A-1-1 Holder and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Notes included in the Lead Securitization (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the applicable Non-Lead Securitization Note appointed pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Note B Holder acknowledges that each Senior Note Holder may elect, in its sole discretion, to include the related Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with such Holder, at such Senior Note Holder’s sole cost and expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Note B Holder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Note B Holder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Note B-1 Holder or Note B-2 Holder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder or otherwise adversely affect the Controlling Noteholder’s rights hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(ii) the Note B Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and in the possession of, or collected or known by, the Master Servicer or Special Servicer relating to the Mortgage Loan and, in any event, all information that is required to be provided to the “Directing Certificateholder” or analogous term under the Securitization Servicing Agreement but not limited to standard CREFC® reports, provided that if an interest in Note B or the Note B Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Note B Holder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy or any “Excluded Information” or analogous term under the Securitization Servicing Agreement;
(iii) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(iv) the Securitization Servicing Agreement may not be amended without the consent of the Note B Holder if such amendment would materially and adversely affect the Mortgage Loan or the Note B Holder’s rights with respect thereto.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1-1 Holder shall (i) cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the Non-Controlling Note Holders and Note B Holder, in substance, to those in the Securitization Servicing Agreement, and (ii) cause the applicable Servicers to service and administer the Mortgage Loan in accordance with the Servicing Standard as set forth in the Securitization Servicing Agreement, and all references herein to the Servicer shall be deemed to refer to such successor servicer.
(b) There shall be established on the Closing Date and maintained, for the benefit of the Secured Parties, in the trust department of the Collateral Agent, a segregated account (the “Securitization Servicing Agreement” Collection Account”), bearing a designation clearly indicating that all of the funds deposited therein are held for the benefit of the Secured Parties. Funds on deposit in the Collection Account (other than investment earnings) shall mean be invested by the Collateral Agent at the direction of the Debtor in Eligible Investments that will mature so that such subsequent servicing agreement; providedfunds will be available prior to the next succeeding Remittance Date, howeverexcept that in the case of funds representing Collections with respect to a succeeding Collection Period, such Eligible Investments may mature so that until a replacement servicing agreement has been entered into, such funds will be available no later than the Note A-1-1 Holder shall cause Business Day prior to the Mortgage Loan Remittance Date for such Collection Period. Any funds on deposit in the Collection Account to be serviced so invested shall be invested solely in accordance with Eligible Investments. On each Remittance Date, all interest and earnings (net of losses and investment expenses) on funds on deposit in the servicing provisions Collection Account shall be available to make any payments required hereunder and shall be distributed pursuant to the priorities set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, provided, however, that Section 5.1.
(c) The Debtor shall cause the Servicer under the Securitization Servicing Agreement shall have no further obligations to make P&I Advances; provided, further, however, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Note A-1-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement. The Note A-1-1 Holder shall provide the Non-Controlling Note Holders and Note B Holder with a reasonable opportunity to review and comment on any replacement Servicing Agreement, and the Note B Holder agrees to reasonably negotiate the final terms of such servicing agreement as promptly as reasonably possible upon receipt of any proposed revisions.
(g) If the Note B Holder exercises its purchase option in accordance with Section 12 hereof, upon the Mortgage Loan being transferred to the Note B Holder, the Note B Holder shall be entitled to terminate the Servicing Agreement in its sole discretion without payment of any termination fees.
(h) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that deposit all Collections in the event that Collection Account no later than the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) close of business on the Non-Lead Master Servicer will be required to, promptly second Business Day following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) 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 Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) receipt thereof by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to the Senior Notes will be allocated by the Master Servicer between the Senior Notes, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
(j) In the event any filing is required to be made by any Non-Lead Depositor under the related Lead Securitization Servicing Agreement in order to comply with the Non-Lead Depositor’s requirements under the Securities Exchange Act of 1934, as amended, the related Non-Lead Securitization Note Holder (including the related Non-Lead Depositor and related Non-Lead Trustee) shall use commercially reasonable efforts to timely comply with any such filing.
Appears in 1 contract
Samples: Security Agreement (First Investors Financial Services Group Inc)
