Certain Matters Regarding the Loan Combinations. (a) Each of the Master Servicer and the Special Servicer, as applicable, shall notify (in writing) the Controlling Class Representative, the related Non-Trust Mortgage Loan Noteholder(s) and (if different) the related Loan Combination Controlling Party of its intention to take any Specially Designated Servicing Action with respect to any Loan Combination and shall provide each such party with all reasonably requested information with respect thereto. Subject to Section 6.12(b), and further subject to Section 3.01(b), Section 3.01(c) and Section 3.02(b) of the related Co-Lender Agreement, the applicable Loan Combination Controlling Party will be entitled to advise the Special Servicer (in the event the Special Servicer is authorized under this Agreement to take the subject action) or the Master Servicer (in the event the Master Servicer is authorized under this Agreement to take the subject action), as applicable, with respect to any and all Specially Designated Servicing Actions with respect to a Loan Combination or any related REO Property; and, further subject to Section 6.12(b) of this Agreement and Section 3.02(b) of the related Co-Lender Agreement, neither the Master Servicer nor the Special Servicer shall be permitted to take (or, in the case of the Special Servicer, if and when appropriate hereunder, to consent to the Master Servicer's taking) any of the related Specially Designated Servicing Actions with respect to a Loan Combination or any related REO Property if the applicable Loan Combination Controlling Party has objected in writing within ten (10) Business Days of the applicable Loan Combination Controlling Party having been notified in writing thereof and having been provided with all reasonably requested information with respect thereto (it being understood and agreed that if such written objection to the subject action on the part of the applicable Loan Combination Controlling Party has not been received by the Master Servicer or the Special Servicer, as applicable, within such ten (10) Business Day period, then the applicable Loan Combination Controlling Party will be deemed to have approved of the subject action); provided that, if the Special Servicer or the Master Servicer, as applicable, determines that immediate action is necessary to protect the interests of the Certificateholders and the related Non-Trust Mortgage Loan Noteholder(s) (as a collective whole), then the Special Servicer or the Master Servicer, as the case may be, may take (or, in the case of the Special Servicer, if and when appropriate hereunder, may consent to the Master Servicer's taking) any such action without waiting for the applicable Loan Combination Controlling Party's response; and provided, further, that, under circumstances where the Controlling Class Representative is not the applicable Loan Combination Controlling Party, nothing herein shall be intended to limit the right of the Controlling Class Representative to consult with the Master Servicer or the Special Servicer, as applicable, regarding any Loan Combination or related REO Property, and during the ten (10) Business Day period referred to above (or such shorter period as is contemplated by the immediately preceding proviso), the Master Servicer or the Special Servicer, as applicable, shall consult with the Controlling Class Representative regarding its views as to the proposed action (but may, in its sole discretion, reject any advice, objection or direction from the Controlling Class Representative) and, upon reasonable request, the Master Servicer or the Special Servicer, as applicable, shall provide the Controlling Class Representative with any information in such servicer's possession with respect to such matters, including its reasons for determining to take a proposed action. In addition, subject to Section 6.12(b), and further subject to Section 3.01(b), Section 3.01(c) and Section 3.02(b) of the related Co-Lender Agreement, if and to the extent provided for under the subject Co-Lender Agreement, the applicable Loan Combination Controlling Party may direct the Special Servicer or the Master Servicer, as appropriate based on their respective duties hereunder, to take, or to refrain from taking, such actions with respect to each Loan Combination or any related REO Property as the applicable Loan Combination Controlling Party may deem consistent with the related Co-Lender Agreement or as to which provision is otherwise made in the related Co-Lender Agreement. Upon reasonable request, the Special Servicer or the Master Servicer, as appropriate based on their respective duties hereunder, shall, with respect to each Loan Combination, provide the applicable Loan Combination Controlling Party with any information in such servicer's possession with respect to such matters, including its reasons for determining to take a proposed action; provided that such information shall also be provided, in a written format, to the Trustee who shall make it available for review pursuant to Section 8.14(b). Promptly following the Special Servicer or the Master Servicer receiving any direction with respect to a Loan Combination or any related REO Property from the applicable Loan Combination Controlling Party as contemplated by this paragraph, such servicer shall notify the Trustee, the Controlling Class Representative (if it is not the applicable Loan Combination Controlling Party) and each related Non-Trust Mortgage Loan Noteholder (if neither it nor its designee is the applicable Loan Combination Controlling Party). Each of the Master Servicer (with respect to Performing Mortgage Loans) and the Special Servicer (with respect to Specially Serviced Mortgage Loans), as applicable, shall notify the related Non-Trust Mortgage Loan Noteholder, the Controlling Class Representative and any other Person that may be the applicable Loan Combination Controlling Party of any release or substitution of collateral for a Loan Combination even if such release or substitution is required by the terms of such Loan Combination. (b) Notwithstanding anything herein to the contrary, no advice, direction or objection with respect to any Loan Combination or related REO Property from or by the applicable Loan Combination Controlling Party, as contemplated by Section 6.12(a), may (and the Special Servicer and the Master Servicer shall each ignore and act without regard to any such advice, direction or objection that the Special Servicer or the Master Servicer, as applicable, has determined, in its reasonable, good faith judgment, will) require, cause or permit such servicer to violate any provision of the related Co-Lender Agreement or this Agreement (exclusive of Section 6.12(a)) (including such servicer's obligation to act in accordance with the Servicing Standard), the related loan documents or applicable law or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Furthermore, neither the Special Servicer nor the Master Servicer shall be obligated to seek approval from the applicable Loan Combination Controlling Party for any actions to be taken by such servicer with respect to the workout or liquidation of any Loan Combination if: (i) such servicer has, as provided in Section 6.12(a), notified the applicable Loan Combination Controlling Party in writing of various actions that such servicer proposes to take with respect to the workout or liquidation of such Loan Combination; and (ii) for 60 days following the first such notice, the applicable Loan Combination Controlling Party has objected to all of those proposed actions and has failed to suggest any alternative actions that such servicer considers to be consistent with the Servicing Standard. (c) The Loan Combination Controlling Party for a Loan Combination will not have any liability to the Trust or the Certificateholders, in the case of a related Non-Trust Mortgage Loan Noteholder or its designee acting in such capacity, or to the related Non-Trust Mortgage Loan Noteholder(s), in the case of the Controlling Class Representative acting in such capacity, for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement or the related Co-Lender Agreement, or for errors in judgment; provided, however, that such Loan Combination Controlling Party will not be protected against any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. (d) The Loan Combination Directing Lender for a Loan Combination may, in accordance with Section 3.02(d) of the related Co-Lender Agreement, designate a representative to exercise its rights and powers under Section 3.02 of the related Co-Lender Agreement and this Section 6.12 or otherwise under the related Co-Lender Agreement and this Agreement. In that regard, upon the occurrence and continuance of a Loan Combination Change of Control Event with respect to a Loan Combination or related REO Property, and for so long as the Trust, as holder of the Combination Trust Mortgage Loan in such Loan Combination (or any successor REO Trust Mortgage Loan with respect thereto), is the applicable Loan Combination Directing Lender, the Controlling Class Representative (i) is hereby designated as the representative of the Trust for purposes of exercising the rights and powers of the applicable Loan Combination Directing Lender under Section 3.02 of the related Co-Lender Agreement and (ii) shall be the applicable Loan Combination Controlling Party hereunder. The Trustee shall take such actions as are necessary or appropriate to make such designation effective in accordance with Section 3.02(d) of the related Co-Lender Agreement. The Master Servicer shall provide the parties to this Agreement with notice of the occurrence of a Loan Combination Change of Control Event with respect to any Loan Combination or related REO Property, promptly upon becoming aware thereof.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2005-C1)
Certain Matters Regarding the Loan Combinations. (a) Each of the Master Servicer and the Special Servicer, as applicable, shall notify (in writing) the Controlling Class Representative, the related Non-Trust Mortgage Loan Noteholder(s) and (if different) the related Loan Combination Controlling Party of its intention to take any Specially Designated Servicing Action with respect to any Loan Combination or related REO Property and shall provide each such party with all reasonably requested information with respect thereto. Subject to Section 6.12(b), and (except in the case of the 101 Avenue of the Americas Loan Combination or any related REO Property) further subject to Section 3.01(b), Section 3.01(c) and Section 3.02(b) of the related Co-Lender Agreement, the applicable Loan Combination Controlling Party will be entitled to advise the Special Servicer (in the event the Special Servicer is authorized under this Agreement to take the subject action) or the Master Servicer (in the event the Master Servicer is authorized under this Agreement to take the subject action), as applicable, with respect to any and all Specially Designated Servicing Actions with respect to a Loan Combination or any related REO Property; and, further subject to Section 6.12(b) of this Agreement and (except in the case of the 101 Avenue of the Americas Loan Combination or any related REO Property) Section 3.02(b) of the related Co-Lender Agreement, neither the Master Servicer nor the Special Servicer shall be permitted to take (or, in the case of the Special Servicer, if and when appropriate hereunder, to consent to the Master Servicer's taking) any of the related Specially Designated Servicing Actions with respect to a Loan Combination or any related REO Property if the applicable Loan Combination Controlling Party has objected in writing within ten (10) Business Days of the applicable Consent Period following the applicable Loan Combination Controlling Party having been notified in writing thereof and having been provided with all reasonably requested information with respect thereto (it being understood and agreed that if such written objection to the subject action on the part of the applicable Loan Combination Controlling Party has not been received by the Master Servicer or the Special Servicer, as applicable, within such ten (10) Business Day periodapplicable Consent Period, then the applicable Loan Combination Controlling Party will be deemed to have approved of the subject action); provided that, if the Special Servicer or the Master Servicer, as applicable, determines that immediate action is necessary to protect the interests of the Certificateholders and the related Non-Trust Mortgage Loan Noteholder(s) (as a collective whole), then the Special Servicer or the Master Servicer, as the case may be, may take (or, in the case of the Special Servicer, if and when appropriate hereunder, may consent to the Master Servicer's taking) any such action without waiting for the applicable Loan Combination Controlling Party's response; and provided, further, that, under circumstances where the Controlling Class Representative is not the applicable Loan Combination Controlling Party, nothing herein shall be intended to limit the right of the Controlling Class Representative to consult with the Master Servicer or the Special Servicer, as applicable, regarding any Loan Combination or related REO Property, and during the ten (10) Business Day period applicable Consent Period referred to above (or such shorter period as is contemplated by the immediately preceding proviso), the Master Servicer or the Special Servicer, as applicable, shall consult with the Controlling Class Representative regarding its views as to the proposed action (but may, in its sole discretion, reject any advice, objection or direction from the Controlling Class Representative) and, upon reasonable request, the Master Servicer or the Special Servicer, as applicable, shall provide the Controlling Class Representative with any information in such servicer's possession with respect to such matters, including its reasons for determining to take a proposed action. In addition, subject to Section 6.12(b), and (except in the case of the 101 Avenue of the Americas Loan Combination or any related REO Property) further subject to Section 3.01(b), Section 3.01(c) and Section 3.02(b) of the related Co-Lender Agreement, if and to the extent provided for under the subject Co-Lender Agreement, the applicable Loan Combination Controlling Party may direct the Special Servicer or the Master Servicer, as appropriate based on their respective duties hereunderhereunder (or, in the case of the 101 Avenue of the Americas Loan Combination or any related REO Property, just the Special Servicer), to take, or to refrain from taking, such actions with respect to each Loan Combination or any related REO Property as the applicable Loan Combination Controlling Party may deem consistent with the related Co-Lender Agreement (or, in the case of the 101 Avenue of the Americas Loan Combination or any related REO Property, as the applicable Loan Combination Controlling Party may deem not inconsistent with the related Co-Lender Agreement and this Agreement) or as to which provision is otherwise made in the related Co-Lender Agreement. Upon reasonable request, the Special Servicer or the Master Servicer, as appropriate based on their respective duties hereunder, shall, with respect to each Loan Combination, provide the applicable Loan Combination Controlling Party with any information in such servicer's possession with respect to such matters, including its reasons for determining to take a proposed action; provided that such information shall also be provided, in a written format, to the Trustee who shall make it available for review pursuant to Section 8.14(b). Promptly following the Special Servicer or the Master Servicer receiving any direction with respect to a Loan Combination or any related REO Property from the applicable Loan Combination Controlling Party as contemplated by this paragraph, and in any event prior to acting on such direction, such servicer shall notify the Trustee, the Controlling Class Representative (if it is not the applicable Loan Combination Controlling Party) and each related Non-Trust Mortgage Loan Noteholder (if neither it nor its designee is the applicable Loan Combination Controlling Party). The Master Servicer and the Special Servicer each shall be obligated, within two Business Days of receiving any request from the 101 Avenue of the Americas Non-Trust Mortgage Loan Noteholder desiring to exercise its consultation rights under Section 4(m) of the 101 Avenue of the Americas Co-Lender Agreement, to: (i) make available to the 101 Avenue of the Americas Non-Trust Mortgage Loan Noteholder, in person at the Primary Servicing Offices of such servicer or by telephone conference, for a reasonable time period, one or more of such servicer's officers responsible for servicing and administration of the 101 Avenue of the Americas Loan Combination or any related REO Property; (ii) provide to the 101 Avenue of the Americas Non-Trust Mortgage Loan Noteholder such information regarding the proposed action that is the subject of such consultation that is in such servicer's possession or easily obtainable by it, including such servicer's reasons for determining to take or permit a proposed action, as the 101 Avenue of the Americas Non-Trust Mortgage Loan Noteholder may reasonably request; and (iii) communicate with the 101 Avenue of the Americas Controlling Party regarding any advice or other views expressed by the 101 Avenue of the Americas Non-Trust Mortgage Loan Noteholder regarding any advice or other views expressed by the 101 Avenue of the Americas Non-Trust Mortgage Loan Noteholder regarding the subject servicing action(s) that are the subject of such consultation. Each of the Master Servicer (with respect to Performing Mortgage Loans) and the Special Servicer (with respect to Specially Serviced Mortgage Loans), as applicable, shall notify the related Non-Trust Mortgage Loan Noteholder, the Controlling Class Representative and any other Person that may be the applicable Loan Combination Controlling Party of any release or substitution of collateral for a Loan Combination even if such release or substitution is required by the terms of such Loan Combination.
(b) Notwithstanding anything herein to the contrary, no advice, direction or objection with respect to any Loan Combination or related REO Property from or by the applicable Loan Combination Controlling Party, as contemplated by Section 6.12(a), may (and the Special Servicer and the Master Servicer shall each ignore and act without regard to any such advice, direction or objection that the Special Servicer or the Master Servicer, as applicable, has determined, in its reasonable, good faith judgment, will) require, cause or permit such servicer to violate any provision of the related Co-Lender Agreement or this Agreement (exclusive of Section 6.12(a)) (including such servicer's obligation to act in accordance with the Servicing Standard), the related loan documents or applicable law or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Furthermore, neither the Special Servicer nor the Master Servicer shall be obligated to seek approval from the applicable Loan Combination Controlling Party for any actions to be taken by such servicer with respect to the workout or liquidation of any Loan Combination if: (i) such servicer has, as provided in Section 6.12(a), notified the applicable Loan Combination Controlling Party in writing of various actions that such servicer proposes to take with respect to the workout or liquidation of such Loan Combination; and (ii) for 60 days following the first such notice, the applicable Loan Combination Controlling Party has objected to all of those proposed actions and has failed to suggest any alternative actions that such servicer considers to be consistent with the Servicing Standard.
(c) The Loan Combination Controlling Party for a Loan Combination will not have any liability to the Trust or the Certificateholders, in the case of a related Non-Trust Mortgage Loan Noteholder or its designee acting in such capacity, or to the related Non-Trust Mortgage Loan Noteholder(s), in the case of the Controlling Class Representative acting in such capacity, for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement or the related Co-Lender Agreement, or for errors in judgment; provided, however, that such Loan Combination Controlling Party will not be protected against any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties.
(d) The Loan Combination Directing Lender for a Loan Combination may, in accordance with Section 3.02(d) (or, in the case of the 101 Avenue of the Americas Loan Combination, Section 4(m)) of the related Co-Lender Agreement, designate a representative to exercise its rights and powers under Section 3.02 (or, in the case of the 101 Avenue of the Americas Loan Combination, Section 4(m)) of the related Co-Lender Agreement and this Section 6.12 or otherwise under the related Co-Lender Agreement and this Agreement. In that regard, upon the occurrence and continuance of a Loan Combination Change of Control Event (if applicable) with respect to a Loan Combination or related REO Property, and/or if and for so long as the Trust, as holder of the Combination Trust Mortgage Loan in such Loan Combination (or any successor REO Trust Mortgage Loan with respect thereto), is or may be part of, as applicable, the applicable Loan Combination Directing Lender (including, where, acting together with a ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇▇▇▇▇ Mortgage Loan Noteholder or a Courtyard by Marriott Pari Passu Non-Trust Mortgage Loan Noteholder, the Trust could constitute one of the "Majority Senior Lenders" (as defined in the related Co-Lender Agreement) and, in such capacity, part of the related Loan Combination Directing Lender), the Controlling Class Representative (or, in the case of the ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Loan Combination or any related REO Property, during a Class ML Control Period, the Class ML Directing Certificateholder, or in the case of the Courtyard by Marriott Loan Combination or any related REO Property, during any Class CBM Control Period, the Class CBM Directing Certificateholder)
(i) is hereby designated as the representative of the Trust for purposes of or in connection with exercising the rights and powers of the applicable Loan Combination Directing Lender under Section 3.02 (or, in the case of the 101 Avenue of the Americas Loan Combination, Section 4(m)) of the related Co-Lender Agreement and (ii) shall be (or, if applicable in the case of the ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Loan Combination or the Courtyard by Marriott Loan Combination, may be part of) the applicable Loan Combination Controlling Party hereunder; provided that, in the case of the 101 Avenue of the Americas Loan Combination, the holder of the 101 Avenue of the Americas Trust Mortgage Loan shall always be the applicable Loan Combination Directing Lender, and, accordingly, the foregoing designation in respect of such Loan Combination shall be effective as of the Closing Date and shall remain in effect for so long as the Trust is the holder of the 101 Avenue of the Americas Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto. The Trustee shall take such actions as are necessary or appropriate to make such designation effective in accordance with Section 3.02(d) (or, in the case of the 101 Avenue of the Americas Loan Combination, Section 4(m)) of the related Co-Lender Agreement, including providing notices to the related Non-Trust Mortgage Loan Noteholder(s). The Master Servicer shall provide the parties to this Agreement with notice of the occurrence of a Loan Combination Change of Control Event (if applicable) with respect to any Loan Combination or related REO Property, promptly upon becoming aware thereof.
(e) Each related Non-Trust Mortgage Loan Noteholder shall be entitled to receive, upon request, a copy of any notice or report required to be delivered (upon request or otherwise) to the Trustee with respect to a Loan Combination or any related REO Property by any other party hereto. Subject to the related Co-Lender Agreement, any such other party shall be permitted to require payment of a sum sufficient to cover the reasonable costs and expenses of providing such copies in accordance with this Section 6.12(e).
(f) Notwithstanding anything herein to the contrary, any appointment of a successor Special Servicer hereunder, insofar as it affects any Loan Combination or any related REO Property, will be subject to any consultation rights of the related Non-Trust Mortgage Loan Noteholder(s) expressly provided for under the related Co-Lender Agreement.
(g) The parties hereto recognize and acknowledge, in the case of each Loan Combination that includes a Note B Non-Trust Mortgage Loan, the rights of the related Note B Non-Trust Mortgage Loan Noteholder under the related Co-Lender Agreement, including the right to: (i) purchase the related Combination Trust Mortgage Loan under the circumstances contemplated by Section 4.03 of the related Co-Lender Agreement; and (ii) in the case of the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Loan Combination and the Courtyard by Marriott Loan Combination, exercise the related Cure Rights. Further, in the case of the ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Loan Combination and the Courtyard by Marriott Loan Combination (i) the holder of the related Combination Trust Mortgage Loan is also entitled to exercise the related Cure Rights under the circumstances set forth in the related Co-Lender Agreement, and the Trustee, as holder of the subject Combination Trust Mortgage Loan, has designated the related Directing Certificateholder as its representative in the exercise of such Cure Rights (in accordance with Sections 3.27 and 3.28, respectively, of this Agreement) and (ii) the holder of the related Combination Trust Mortgage Loan is also entitled to exercise certain purchase options with respect to the related Pari Passu Non-Trust Mortgage Loans under the circumstances set forth in the related Co-Lender Agreement, and the Trustee, as holder of the su
Appears in 1 contract
Sources: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2005-C3)