Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a). (b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof): (i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance; (ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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; (iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below; (iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization; (v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note; (vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party; (vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard; (viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party; (ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization; (x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor; (xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds; (xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement; (xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances; (xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide not
Appears in 12 contracts
Sources: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2025-5c4), Co Lender Agreement (Bank5 2025-5yr14), Co Lender Agreement (Bank5 2025-5yr13)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who sh
Appears in 8 contracts
Sources: Co Lender Agreement (MSWF Commercial Mortgage Trust 2023-1), Co Lender Agreement (Bank5 2023-5yr3), Co Lender Agreement (BBCMS Mortgage Trust 2023-C21)
Provisions Relating to Securitization. (a) For so long as an Initial The Note A-1 Holder or its Affiliate (an “Initial and the Note A-2 Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New Notes”) reallocating the principal of its Note(s) Note A-1 or Note A-2 among other New Notes; reducing the Interest Rates of such New Notes or severing its Note(s) the Note A-1 or A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1 or A-2, as applicable, provided that (i) the aggregate principal balance of the New Notes and following such amendments is no greater than the principal balance of the related respective original Note(s) Note prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the respective original Note(s) Note prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Servicing Agreement and the applicable master servicer of such Securitization) Non-Lead Servicing Agreement in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all either of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)Note A-1 or Note A-2, (2) if a Note A-1 or Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(aSection 21(a). The Holder whose Note is being reallocated or split pursuant to this Section 21(a) shall reimburse the other Holder for all costs and expenses incurred by the other Holder in connection with the reallocation or split.
(b) The Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer or Trustee applicable master servicer and trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event the Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 20, and funds received with respect to the Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Lead Trustee to pay itself from the Lead Securitization Trust’s general account then the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Lead Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Lead Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to the Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to the Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall provide the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) (provided such party is not also a party to the Note A-1 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) provided such party is not also a party to the Note A-1 PSA.
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any the Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related master servicer under the Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to on a monthly basis on the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the applicable Master Servicer Remittance Date for the Non-Lead NoteDate;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subthe Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other Servicing Agreements as the parties to the Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, the Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the trustee for any prior Securitization a copy of the Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, Form 10-D and any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and (ii) upon request, any other materials specified in the related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee with respect to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shallServicers, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the Non-Lead SecuritizationServicing Agreement;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Agreement shall include the duty to service the Non-Lead Depositor Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(including, without limitation, providing all due diligence information, reports, written responses, negotiations vii) the Master Servicer shall withdraw from the related Collection Account and coordination) remit to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) Holder of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor Note, within two (including reasonable legal fees and expenses 2) Business Days of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) properly identified funds, any amounts that represent late collections received by the Master Servicer from the Borrower that are allocable to a or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall any third party in accordance with this Agreement), unless such amount would otherwise be remitted by included in the Master Servicer monthly remittance to the Holder of such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereofNote for such month; 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 prepayments to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(x) it shall not be amended in a manner that materially and adversely affects the rights of the Non-Lead Note Holder without their consent; and
(xi) satisfy ▇▇▇▇▇’▇ rating methodology as of the closing date of the Lead Securitization related to permitted investments and eligible accounts applicable to securities rated “Aaa” by Moody’s;
(xii) in connection with (A) any amendment of the Servicing Agreement, a party to such Servicing Agreement is required to provide a copy of the executed amendment to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement (which may be by e-mail), together with a copy of such amendment in electronic format, no later than the effective date of such amendment, and (B) the termination, resignation and/or replacement of the Master Servicer or Special Servicer under the Servicing Agreement, the replacement “master servicer” or replacement “special servicer”, as applicable, is required to provide to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof;
(xiii) “servicer termination events” (or any analogous term under the Servicing Agreement) include customary market termination events with respect to failure to make advances, failure to remit payments to the Non-Lead Note Holder as required, failure to deliver (or cause to be delivered) materials or information required in order for the Non-Lead Note Holder or the depositor under the Non-Lead Servicing Agreement to timely comply with its obligations under the Exchange Act, the Securities Act or Form SF-3, and for rating agency triggers with respect to any Certificates, subject to customary grace periods (provided that, in the case of failures related to the securities laws, such grace periods will not cause a depositor under the Non-Lead Servicing Agreement to fail to comply with the applicable provisions of such securities laws);
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Non-Lead Note in accordance with becomes the subject of an “asset review” under the Non-Lead Securitization Servicing Agreement, it the applicable parties to the Servicing Agreement are required to reasonably cooperate with the related asset representations reviewer or other applicable party to the Non-Lead Servicing Agreement in connection with such asset review, including with respect to providing access to related underlying documents to the extent the asset representations reviewer or such other applicable party to the Non-Lead Servicing Agreement has not obtained such documents from the Non-Lead Note Holder and such documents are in the possession of the applicable party to the Servicing Agreement; and
(xv) shall have provisions materially consistent with those set forth in market-standard CMBS servicing agreements with respect to:
(1) servicing transfer events that would result in the right and the obligation to sell all transfer of the Notes as notes evidencing one whole loan in accordance with Mortgage Loan to special servicing status;
(2) the terms authority of the Lead servicers in the Note A-2 Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notto grant or agree or consent to material mod
Appears in 7 contracts
Sources: Co Lender Agreement (UBS Commercial Mortgage Trust 2019-C18), Co Lender Agreement (CSAIL 2019-C18 Commercial Mortgage Trust), Co Lender Agreement (CSAIL 2019-C18 Commercial Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 A-1-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph Section 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who sh
Appears in 7 contracts
Sources: Co Lender Agreement (BMO 2025-5c9 Mortgage Trust), Co Lender Agreement (Benchmark 2025-V13 Mortgage Trust), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2025-5c3)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes; provided, however, that for the avoidance of doubt, no such amendment to the Mortgage Loan Documents and this Agreement may require the Master Servicer to violate the Servicing Standard. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi18(b)(x) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related securitization of the planned sale and such Non-Directing Holder’s opportunity to submit an offer on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or
Appears in 7 contracts
Sources: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2025-5c4), Co Lender Agreement (BMO 2025-5c10 Mortgage Trust), Co Lender Agreement (Bank5 2025-5yr14)
Provisions Relating to Securitization. (a) For so long as an any Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(srelated Note (for purposes of this Section 18(a), the “Subject Note”, then such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) the Subject Note among the New Notes; reducing the Mortgage Interest Rates of such New Notes or severing its Note(s) the Subject Note into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)the Subject Note, provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) Subject Note prior to such amendments, (ii) all New Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Subject Note prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for if any such other Note that has been contributed to shall have included in a Securitization, then it shall notify the parties to the trustee and the applicable master servicer of PSA governing such Securitizationother Note) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, any reduction of Mortgage Interest Rates or such severing of Note(s)the Subject Note, (2) if a the Subject Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Subject Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph Section 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer, the Special Servicer or the Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance Servicing Advance, with respect to the Mortgage Loan, if made, or any outstanding P&I Advance with respect to the Lead Note or Property Advance Servicing Advance, with respect to the Mortgage Loan previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer, the Special Servicer or the Trustee, as applicable, shall provide each the Non-Lead Master Servicer or Non-Lead Special Servicer, as applicable, for each Non-Lead Securitization written notice of such determination promptly after within two (2) Business Days of the date of 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 nonrecoverabilitydetermination;
(iii) the Master Servicer shall remit all payments received with respect to any each Non-Lead Note, net of the Servicing Fees and Special Servicing Fees any portion thereof that is payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable or reimbursable to the Master Servicer, the Special Servicer and or the Trustee with respect to such Non-Lead NoteTrustee, to the related each Non-Lead Note Holder by the applicable Master Servicer Serviced Whole Loan Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, on each Serviced Whole Loan Remittance Date the Master Servicer agrees to shall deliver or cause to be delivered or make available in electronic format acceptable to the related Non-Lead Master Servicer (A) all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include including all loan-level reports constituting from the CREFC® Investor Reporting Package (IRP)Package) required to be delivered pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, and (B) all quarterly and annual operating statements, financial statements, budgets, rent rolls and sales reports of the related Mortgaged Property, such Non-Lead Notethe quarterly and annual financial statements of the related borrower, and any other reports or documents required to be delivered under the Master Servicer, terms of the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Noterelated Mortgage Loan Documents;
(viv) the Master Servicer and Special Servicerany notice, as applicablereport, shall provide assessment, attestation, statement, certificate and/or information furnished or required to be furnished pursuant to Article XI (or any article substantially similar thereto relating to Exchange Act reporting and filing) of the Special Servicer Lead Securitization Servicing Agreement shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) also be provided to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls Depositor and other information regarding the Mortgage Loan provided by it to any other party each Non-Lead Certificate Administrator (to the extent such item and/or information relates to a Non-Lead Securitization Servicing Agreement at the time provided to such other partyNote or a party that services, specially services or is a trustee or custodian for a Non-Lead Note);
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Custodian, the Operating Advisor, any primary servicer Advisor and the Custodian Asset Representations Reviewer shall be required to (indemnify and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify hold harmless each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act party (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause Person who signs a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification for any public Other Securitization that includes a Non-Lead Note as well as the entity for which such Person acts as an officer, and such entity’s officers, directors and affiliates) from and against any claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and other costs and expenses incurred by such certification party arising out of (i) an actual breach by the Master Servicer, the Special Servicer, the Trustee, the Operating Advisor, the Asset Representations Reviewer, the Custodian or the Certificate Administrator, as the case may be, of its obligations under Article XI (or any article substantially similar thereto relating to Exchange Act reporting and filing) of the Lead Securitization Servicing Agreement, (ii) negligence, bad faith or willful misconduct on the part of the Master Servicer, the Special Servicer, the Trustee, the Asset Representations Reviewer, the Operating Advisor, the Custodian or the Certificate Administrator in the performance of such obligations, or (iii) delivery of any Deficient Exchange Act Deliverable by, or on behalf of, such party;
(viii) each of the Trustee, the Certificate Administrator, the Master Servicer and the Special Servicer understands that information about itself may be included in the offering material related to a Non-Lead Securitization and agrees to (a) negotiate in good faith an agreement (subject to such party receiving reasonable advance notice and being paid for reasonable out-of-pocket expenses) to indemnify and hold any related Non-Lead Depositor and underwriters involved in the offering of the related commercial mortgage pass through certificates harmless for any costs, liabilities, fees and expenses incurred by such Non-Lead Depositor or such underwriters as a result of any material misstatements or omissions or alleged material misstatements or omissions in any such offering material to the extent that such material misstatement or omission was made in reliance upon any such information provided by the Trustee, the Certificate Administrator, the Master Servicer or the Special Servicer, as applicable, to such Non-Lead Depositor, underwriters or mortgage loan seller and (b) deliver such securities law opinion(s) of counsel, certifications and/or indemnification agreement(s) (to the extent the cost thereof is paid by the applicable Non-Lead Note Holder) with respect to such information that are substantially similar to those delivered with respect to the offering material for the Lead Securitization by the Master Servicer, the Special Servicer, Trustee or Certificate Administrator, as the case may be, or their respective counsel, in connection with the information concerning such party in the offering material related to a Non-Lead Securitization;
(ix) the Master Servicer, the Special Servicer, the Trustee, the Operating Advisor and the Certificate Administrator shall (i) with respect to any Initial Sub-Servicer engaged by the Master Servicer, the Special Servicer, Trustee or Certificate Administrator that is a Servicing Function Participant or Additional Servicer, use commercially reasonable efforts to cause such party to, and (ii) with respect to each other Additional Servicer and each Servicing Function Participant with which, in each case, it has entered into a servicing relationship with respect to the Mortgage Loans, cause such party to, in each case, indemnify and hold harmless each certification party (including each Person who signs a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification for any public Other Securitization that includes a Non-Lead Note as well as the entity for which such Person acts as an officer, and such entity’s officers, directors and affiliates) from and against any and all claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and any other costs, fees and expenses incurred by such certification party arising out of (a) a breach of its obligations to provide any of the annual compliance statements or annual assessment of compliance with the servicing criteria or attestation reports pursuant to the applicable sub-servicing or primary servicing agreement, (b) negligence, bad faith or willful misconduct on its part in the performance of such obligations, (c) any failure by it, as a servicer to identify a Servicing Function Participant pursuant to Lead Securitization Servicing Agreement, or (d) delivery of any Deficient Exchange Act Deliverable;
(x) each of the Trustee, the Certificate Administrator, the Master Servicer and the Special Servicer shall, and each of the Master Servicer and the Special Servicer shall use commercially reasonable efforts to cause any Servicing Function Participant appointed thereby with respect to the Mortgage Loan to, cooperate with the Non-Lead Depositor, Non-Lead Trustee, Non-Lead Certificate Administrator, Non-Lead Master Servicer and Non-Lead Special Servicer in preparing each Form 10 D, Form ABS-EE, Form 8-K and Form 10 K required to be filed by such Non-Lead Securitization and shall provide (within such time periods as would enable the Non-Lead Securitization and the Non-Lead Depositor to timely comply with its Exchange Act and Securities Act reporting requirements) to such Non-Lead Depositor, Non-Lead Trustee, Non-Lead Certificate Administrator and Non-Lead Master Servicer for such Non-Lead Securitization such information as may be reasonably necessary for the Non-Lead Depositor, Non-Lead Trustee, Non-Lead Certificate Administrator and Non-Lead Master Servicer to timely comply with the reporting requirements of Regulation AB and the Exchange Act;
(xi) each of the Trustee, the Certificate Administrator, the Custodian, the Master Servicer and the Special Servicer shall, and each of the Master Servicer and the Special Servicer shall use commercially reasonable efforts to cause any Servicing Function Participant appointed thereby with respect to the Mortgage Loan to, provide, with respect to itself, to the Non-Lead Depositor, Non-Lead Trustee or Non-Lead Certificate Administrator, as applicable, (i) a report on an assessment of compliance with the servicing criteria to the extent required pursuant to Item 1122(a) of Regulation AB, (ii) a registered accounting firm’s attestation report on such Person’s assessment of compliance with the applicable servicing criteria to the extent required pursuant to Item 1122(b) of Regulation AB; (iii) such other information as may be required pursuant to Item 1122(c) of Regulation AB and (iv) a servicer compliance statement signed by an authorized officer of such Person that satisfies the requirements of Item 1123 of Regulation AB;
(xii) each of the Master Servicer, the Special Servicer, the Custodian Operating Advisor, the Asset Representations Reviewer, the Custodian, the Certificate Administrator and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), ) with the Lead Depositor and each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with necessary for the Lead Depositor under Article X (or such Non-Lead Depositor, as applicable, to conduct any article substantially similar thereto) reasonable due diligence necessary to evaluate and assess any material instances of non-compliance disclosed in any of the Lead Securitization Servicing Agreement deliverables required by the applicable reporting requirements under the Securities Act, the Exchange Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and in connection with Deficient Exchange Act Deliverablesthe rules and regulations promulgated thereunder. All respective reasonable out-of-pocket costs and expenses incurred by the Lead Depositor or any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositorthe Lead Depositor or any Non-Lead Depositor, as the case may be) in connection with the foregoing (other than those costs and expenses related required to participation by such be at the Lead Depositor’s or any Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Depositor’s expense under Article X XI (or any article substantially similar theretothereto relating to Exchange Act reporting and filing) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the United States Securities and Exchange Commission therewith (the “Commission”) or its staff related thereto shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such the Lead Depositor or any Non-Lead Depositor, as the case may be;
(xixiii) any late collections received by in the event the Master Servicer from the Borrower has received written notice that are allocable to a Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee has made an advance of a monthly debt service payment on a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by and the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent 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 subsequently receives late collections to in respect of such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any eventadvanced payment, the Master Servicer shall remit such amounts to the applicable Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee, within two (2) Business Days of following receipt of such late collections in properly identified funds, the amount allocable to such Non-Lead Note in accordance with the terms of this Agreement and the Lead Securitization Servicing Agreement;
(xiixiv) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixv) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advancesreimbursement or advances;
(xivxvi) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Note Holder;
(xvii) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xviii) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to
Appears in 6 contracts
Sources: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2017-C41), Co Lender Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2017-C34), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2017-C40)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi18(b)(x) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day business day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related securitization of the planned sale and such Non-Directing Holder’s opportunity to submit an offer on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or the failure to remit to the Master Servicer for deposit into the Collection Account or the related Loan Combination Custodial Account, as applicable, any amount required to be so remitte
Appears in 6 contracts
Sources: Co Lender Agreement (BMO 2023-5c2 Mortgage Trust), Co Lender Agreement (3650R 2022-Pf2 Commercial Mortgage Trust), Co Lender Agreement (Benchmark 2022-B37 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes; provided, however, that for the avoidance of doubt, no such amendment to the Mortgage Loan Documents and this Agreement may require the Master Servicer to violate the Servicing Standard. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi18(b)(x) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇E▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇E▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related securitization of the planned sale and such Non-Directing Holder’s opportunity to submit an offer on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or
Appears in 5 contracts
Sources: Co Lender Agreement (Benchmark 2025-V16 Mortgage Trust), Co Lender Agreement (BBCMS Mortgage Trust 2025-5c36), Co Lender Agreement (Benchmark 2025-V15 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1A-2, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 A-2 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide not
Appears in 5 contracts
Sources: Co Lender Agreement (BMO 2024-5c4 Mortgage Trust), Co Lender Agreement (BANK5 Trust 2024-5yr6), Co Lender Agreement (BBCMS Mortgage Trust 2024-5c25)
Provisions Relating to Securitization. (a) For so long as an Initial any Note Holder or its Affiliate (an each, a “Initial Note Holder Resizing Entity”) is the owner of its Note(sany Note that is not included in a Securitization (each, an “Owned Note”), such Initial Note Holder Resizing Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case each case, as applicable “New Notes”) reallocating the principal an Owned Note to such New Notes; reducing the Mortgage Interest Rates of its Note(s) such New Notes or severing its Note(s) an Owned Note into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)such Owned Note, provided that (i) the aggregate principal balance of the all outstanding New Notes following such amendments is no greater than the aggregate principal balance of the related original Note(s) Owned Note prior to such amendments, (ii) all New Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Notes prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Resizing Entity holding the New Notes shall notify the other Holders (orNote Holders, for any Note that has been contributed to a Securitization, and to the trustee extent applicable, the Master Servicer, the Special Servicer, the Certificate Administrator and the applicable master servicer of such Securitization) Trustee in writing of such modified allocations and principal amounts. If the Lead Note Holder so requests, the Resizing Entity holding the New Notes (and any subsequent holder of such Notes) shall execute a confirmation of the continuing applicability of this Agreement to the New Notes, as so modified. Except for the foregoing reallocation and for modifications pursuant to the Lead Securitization Servicing Agreement, no Note may be modified or amended without the consent of its holder and the consent of the holder of each other Note. In connection with the foregoingforegoing (provided the conditions set forth in clauses (i) through (iv) above are satisfied, with respect to clauses (1i) through (iv), as certified by the Resizing Entity, on which certification the Master Servicer can rely), the Master Servicer is hereby authorized and directed to execute amendments to the Mortgage Loan Agreement Documents and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders Holders, as applicable, solely for the purpose of reflecting such reallocation of principal or such severing and that each New Note shall be a “Note” hereunder and for purposes of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the adding and modifying any definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notesthereto. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Each Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Securitization Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required required, and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;.
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any related Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day business day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment Depositor shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related securitization of the planned sale and such Non-Directing Holder’s opportunity to bid on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or the failure to remit to the Master Servicer for deposit into the Collection Account or the related Loan Combination Custodial Account, as applicable, any amount required to be so remitted by the Special Servicer within one (1) Business Day after
Appears in 5 contracts
Sources: Co Lender Agreement (GS Mortgage Securities Trust 2019-Gsa1), Co Lender Agreement (GS Mortgage Securities Trust 2019-Gc42), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2018-C48)
Provisions Relating to Securitization. (a) For so long as an Initial The Note A-1 Holder or its Affiliate (an “Initial and the Note A-2 Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New Notes”) reallocating the principal of its Note(s) Note A-1 or Note A-2 among other New Notes; reducing the Interest Rates of such New Notes or severing its Note(s) the Note A-1 or A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1 or A-2, as applicable, provided that (i) the aggregate principal balance of the New Notes and following such amendments is no greater than the principal balance of the related respective original Note(s) Note prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the respective original Note(s) Note prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Servicing Agreement and the applicable master servicer of such Securitization) Non-Lead Servicing Agreement in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all either of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)Note A-1 or Note A-2, (2) if a Note A-1 or Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(aSection 21(a). The Holder whose Note is being reallocated or split pursuant to this Section 21(a) shall reimburse the other Holder for all costs and expenses incurred by the other Holder in connection with the reallocation or split.
(b) The Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer or Trustee applicable master servicer and trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event the Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 20, and funds received with respect to the Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Lead Trustee to pay itself from the Lead Securitization Trust’s general account then the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Lead Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Lead Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to the Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to the Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall provide the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) (provided such party is not also a party to the Note A-1 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) provided such party is not also a party to the Note A-1 PSA.
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any the Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related master servicer under the Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to on a monthly basis on the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the applicable Master Servicer Remittance Date for the Non-Lead NoteDate;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subthe Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other Servicing Agreements as the parties to the Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, the Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the trustee for any prior Securitization a copy of the Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, Form 10-D and any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and (ii) upon request, any other materials specified in the related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee with respect to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shallServicers, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the Non-Lead SecuritizationServicing Agreement;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Agreement shall include the duty to service the Non-Lead Depositor Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(including, without limitation, providing all due diligence information, reports, written responses, negotiations vii) the Master Servicer shall withdraw from the related Collection Account and coordination) remit to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) Holder of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor Note, within two (including reasonable legal fees and expenses 2) Business Days of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) properly identified funds, any amounts that represent late collections received by the Master Servicer from the Borrower that are allocable to a or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall any third party in accordance with this Agreement), unless such amount would otherwise be remitted by included in the Master Servicer monthly remittance to the Holder of such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereofNote for such month; 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 prepayments to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(x) it shall not be amended in a manner that materially and adversely affects the rights of the Non-Lead Note Holder without their consent; and
(xi) satisfy ▇▇▇▇▇’▇ rating methodology as of the closing date of the Lead Securitization related to permitted investments and eligible accounts applicable to securities rated “Aaa” by ▇▇▇▇▇’▇;
(xii) in connection with (A) any amendment of the Servicing Agreement, a party to such Servicing Agreement is required to provide a copy of the executed amendment to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement (which may be by e-mail), together with a copy of such amendment in electronic format, no later than the effective date of such amendment, and (B) the termination, resignation and/or replacement of the Master Servicer or Special Servicer under the Servicing Agreement, the replacement “master servicer” or replacement “special servicer”, as applicable, is required to provide to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof;
(xiii) “servicer termination events” (or any analogous term under the Servicing Agreement) include customary market termination events with respect to failure to make advances, failure to remit payments to the Non-Lead Note Holder as required, failure to deliver (or cause to be delivered) materials or information required in order for the Non-Lead Note Holder or the depositor under the Non-Lead Servicing Agreement to timely comply with its obligations under the Exchange Act, the Securities Act or Form SF-3, and for rating agency triggers with respect to any Certificates, subject to customary grace periods (provided that, in the case of failures related to the securities laws, such grace periods will not cause a depositor under the Non-Lead Servicing Agreement to fail to comply with the applicable provisions of such securities laws);
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Non-Lead Note in accordance with becomes the subject of an “asset review” under the Non-Lead Securitization Servicing Agreement, it the applicable parties to the Servicing Agreement are required to reasonably cooperate with the related asset representations reviewer or other applicable party to the Non-Lead Servicing Agreement in connection with such asset review, including with respect to providing access to related underlying documents to the extent the asset representations reviewer or such other applicable party to the Non-Lead Servicing Agreement has not obtained such documents from the Non-Lead Note Holder and such documents are in the possession of the applicable party to the Servicing Agreement; and
(xv) shall have provisions materially consistent with those set forth in market-standard CMBS servicing agreements with respect to:
(1) servicing transfer events that would result in the right and the obligation to sell all transfer of the Notes as notes evidencing one whole loan in accordance with Mortgage Loan to special servicing status;
(2) the terms authority of the Lead servicers in the Note A-2 Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notto grant or agree or consent to material mod
Appears in 5 contracts
Sources: Co Lender Agreement (CSAIL 2019-C18 Commercial Mortgage Trust), Co Lender Agreement (BBCMS Mortgage Trust 2019-C4), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2019-C52)
Provisions Relating to Securitization. (a) For so long as an any Initial Note Holder or its an Affiliate thereof (an each, a “Initial Note Holder Resizing Entity”) is the owner of its Note(sany Note (each, an “Owned Note”), such Initial Note Holder Resizing Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case each case, as applicable “New Notes”) reallocating the principal an Owned Note to such New Notes; reducing the Mortgage Interest Rates of its Note(s) such New Notes or severing its Note(s) an Owned Note into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)such Owned Note, provided that (i) the aggregate principal balance of the all outstanding New Notes following such amendments is no greater than the aggregate principal balance of the related original Note(s) Owned Note prior to such amendments, (ii) all New Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Notes prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Resizing Entity holding the New Notes shall notify the other Holders (orLead Note Holder, for any Note that has been contributed to a Securitizationthe Master Servicer, to the trustee Special Servicer, the Certificate Administrator and the applicable master servicer of such Securitization) Trustee in writing of such modified allocations and principal amounts. If the Lead Note Holder so requests, the Resizing Entity holding the New Notes (and any subsequent holder of such Notes) shall execute a confirmation of the continuing applicability of this Agreement to the New Notes, as so modified. Except for the foregoing reallocation and for modifications pursuant to the Lead Securitization Servicing Agreement, no Note may be modified or amended without the consent of its holder and the consent of the holder of each other Note. In connection with the foregoingforegoing (provided the conditions set forth in clauses (i) through (iv) above are satisfied, with respect to clauses (1i) through (iv), as certified by the Resizing Entity, on which certification the Master Servicer can rely), the Master Servicer is hereby authorized and directed to execute amendments to the Mortgage Loan Agreement Documents and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders Holders, as applicable, solely for the purpose of reflecting such reallocation of principal or such severing and that each New Note shall be a “Note” hereunder and for purposes of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the adding and modifying any definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notesthereto. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide not
Appears in 4 contracts
Sources: Co Lender Agreement (CSMC 2016-NXSR Commercial Mortgage Trust), Co Lender Agreement (CFCRE 2016-C7 Mortgage Trust), Co Lender Agreement (Morgan Stanley Capital I Trust 2016-Ubs12)
Provisions Relating to Securitization. (a) For so long as Natixis or an Initial Note Holder or its Affiliate of Natixis (an “Initial Note Holder EntityHolder”) is the owner of its Note(s)any Notes, such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes (“Amended Notes”) or additional notes (in either case the “New Notes”) reallocating the principal of its Note(sthe Note or Notes that it owns (but in no case any Note that it does not own) among Amended Notes and New Notes or severing its Note(s) a Note into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)the Note or Notes being amended or created, provided that (i) the aggregate principal balance of the Amended Notes and New Notes following such amendments is no greater than the principal balance of the related original Note(s) Amended Notes and New Notes prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) Amended Note of which is was a part prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis with the Amended Notes and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the each other Holders (orHolder, for as applicable, and, if any other Note that has been contributed to included in a Securitizationsecuritization, to the trustee parties under each applicable pooling and the applicable master servicer of such Securitization) servicing agreement, in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)a Note, (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1Note, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New NotesNotes and (4) if Natixis is the current Directing Holder, it may designate the holder of a different Note to be the Directing Holder. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(aSection 21(a).
(b) . The Lead Initial Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) the Master Servicer whose Note is being reallocated or Trustee shall be required to provide written notice to each Non-Lead Master Servicer and each Non-Lead Trustee of any P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) split pursuant to this Section 21(a) shall reimburse the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date other Holders for the Non-Lead Note;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) the other Holders in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (reallocation or any article substantially similar thereto) split. If a New Note is created out of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with Note the Commission therewith Initial Note A-1 Holder shall designate which Note will be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide nothereunder.
Appears in 4 contracts
Sources: Co Lender Agreement (UBS Commercial Mortgage Trust 2018-C15), Co Lender Agreement (UBS Commercial Mortgage Trust 2018-C13), Co Lender Agreement (CSAIL 2018-Cx12 Commercial Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1A-2, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 A-2 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi18(b)(x) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related securitization of the planned sale and such Non-Directing Holder’s opportunity to submit an offer on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for two (2) Business Days following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or the failure to remit to the Master Servicer for deposit into the Collection Account or the related Loan Combination Custodial Account, as applicable, any amount required to be so remitt
Appears in 4 contracts
Sources: Co Lender Agreement (MSWF Commercial Mortgage Trust 2023-2), Co Lender Agreement (MSWF Commercial Mortgage Trust 2023-1), Co Lender Agreement (FIVE 2023-V1 Mortgage Trust)
Provisions Relating to Securitization. (a) New Notes. For so long as an Initial a Note is not included in a Securitization, the Holder or its Affiliate of such Note (an the “Initial Note Holder EntityResizing Holder”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes (“Amended Notes”) or additional notes (in either case “New Notes”) reallocating the principal of its Note(sthe Note or Notes that it owns (but in no case any Note that it does not then own) among Amended Notes and New Notes or severing its Note(s) a Note into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)the Note or Notes being amended or created, provided that (i) the aggregate principal balance of the Amended Notes and New Notes following such amendments is no greater than the principal balance of the related original Note(s) Amended Notes and New Notes prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) Amended Note of which it was a part prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis with the Amended Notes and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Resizing Holder Entity holding the New Notes shall notify the each other Holders (orHolder, for as applicable, and, if any other Note that has been contributed to included in a Securitizationsecuritization, to the trustee and the parties under each applicable master servicer of such Securitization) PSA, in writing (which may be by email) of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)a Note, (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1Note, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes and (4) if Note A-1 is severed into “component” notes, another note (or one of the New Notes) may be substituted for Note A-1 in the definition of “Directing Holder” and the definitions of “Lead Note” and “Lead Securitization” and “Non-Directing Holder” will be revised accordingly. Neither Rating Agency Confirmation nor approval of the Directing Holder shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph Section 18(a). The Resizing Holder whose Note is being reallocated or split pursuant to this Section 18(a) shall reimburse the other Holders for all costs and expenses incurred by the other Holders in connection with the reallocation or split.
(b) The Each Non-Lead Note Holder agrees that (unless the Non-Lead Note and the Lead Note are included in the same Securitization) it shall cause the Non-Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):follows:
(i) the Master Servicer applicable master servicer or Trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and Trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event the Non-Lead Note Holders are responsible for their proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17 and funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of the Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(c) Notice to Parties to the Servicing Agreement.
(i) The Holder of the Lead Note shall provide the Depositor, the Servicer and the Special Servicer under the Non-Lead Servicing Agreement (as of the Note A-1 Securitization Date) (provided such party is not also a party to the Lead Securitization PSA) notice of the Lead Securitization in writing (which may be by email) prior to or promptly following the Note A-1 Securitization Date. Unless accompanied by the Lead Securitization PSA, such notice shall contain contact information for each of the parties to the Lead Securitization PSA and the identity of the Controlling Class Representative under such Lead Securitization PSA. In addition, after the Note A-1 Securitization Date, the Lead Note Holder shall send a copy of the Lead Securitization PSA to the Depositor, the Servicer and the Special Servicer under each Non-Lead Servicing Agreement (as of the Note A-1 Securitization Date) provided such party is not also a party to the Lead Securitization PSA.
(ii) Each Non-Lead Note Holder shall provide the Depositor, the Servicer, and the Special Servicer under the Lead Securitization PSA (as of the closing date of the related Securitization) (provided such party is not also a party to the Non-Lead Servicing Agreement) notice of the Securitization in writing (which may be by email) prior to or promptly following the closing date of the related Securitization. Such notice shall contain contact information for each of the parties to the Non-Lead Servicing Agreement and the identity of the Non-Directing Holders under the Securitization. In addition, after the closing date of the related Securitization, each Non-Lead Note Holder shall send a copy of the related Non-Lead Servicing Agreement to the Depositor, the Servicer, and the Special Servicer under the Lead Securitization PSA (provided such party is not also a party to such Non-Lead Servicing Agreement).
(d) The Lead Securitization PSA shall:
(i) provide that the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) provide that if the Master Servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within two Business Days 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 nonrecoverabilitymade;
(iii) provide that the Master Servicer shall remit all payments received (or advanced) with respect to any Non-Lead NoteNote (other than any Non-Lead Note deposited into the Lead Securitization as to which payments shall be applied as provided in the Servicing Agreement), net of its Servicing Fee (calculated at the “primary servicing fee rate” as set forth in the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Agreement) and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect Trustee, to such the Non-Lead Note, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports provide that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related master servicer under a Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to on a monthly basis on the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the applicable Master Servicer Remittance Date for the Non-Lead NoteDate;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special ServicerServicer and the Trustee for the Lead Securitization, the Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subany Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10-K, Form 10-D and D, Form 8-K), notices, and (ii) upon request, any other materials specified in each of the related other Servicing Agreements as the parties to each Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required may require in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its their obligations under the Securities ActAct of 1933, the as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB AB, and Form SF-3 any other applicable law and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without or its obligations with respect to any deficient Exchange Act receivable. Without limiting the generality of the foregoing (x) the foregoing, each Lead Depositor or the related Note Holder for a Lead Securitization shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, depositor and (2) no later than one (1) Business Day following the closing date of such Securitization, Trustee for any other Securitization a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, PSA and (y) the Master Servicer and Special each Lead Servicer (or any replacement Master Servicer or Special Servicer, as applicableat the expense of the Lead Note Holder) shall, upon reasonable prior written request, and subject will be required to provide to the right of depositor and the Master Servicer or the Special Servicer, as the case may be, Trustee for any other Securitization any other information required to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained comply in a Lead Securitization timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), for inclusion in and with respect to the disclosure materials (orLead Servicers, in the case of a replacement Special Servicerupon prior written request, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization. To the extent a Lead Servicer (or a primary or sub-servicer servicing the Mortgage Loan pursuant to the Servicing Agreement) is required by a Non-Lead Securitization (party to deliver disclosure information pursuant to Regulation AB in each casea future Securitization and, at if such Lead Servicer is not also the cost of Non-Lead Master Servicer, the applicable special servicer or other party to the related Non-Lead Sponsor)Servicing Agreement, and (c) or a primary servicer who is a servicing function participant, or an Affiliate of the Mortgage Loan Seller or material relationship in connection with any amendment such future Securitization, and therefore is not already providing such information in connection with the future Securitization, the Mortgage Loan Seller shall be responsible for costs related to compliance with the related requirements of Regulation AB. 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 Lead Securitization Servicing AgreementCommission, the party requesting such amendment shall provide written notice (which or as may be provided by e-mail) the Commission or its staff from time to time, in each case as effective from time to time as of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer and Servicer, any primary servicer, the Special Servicer and each other applicable party to the Servicing Agreement shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the related Non-Lead SecuritizationServicing Agreements;
(xvi) provide that the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable SubServicing Agreement shall include the duty to service the Non-Lead Notes on behalf of the related Note Holders (including the related Trustees and related Certificate holders) in accordance with the terms and provisions of this Agreement and that any conflict between the Servicing Agreement and this Agreement shall be resolved in favor of this Agreement;
(vii) provide that, with respect to any/each Non-Lead Note (other than any Non-Lead Note deposited into the Lead Securitization as to which payments shall be withdrawn and remitted as provided in the Servicing Agreement), with each the Master Servicer shall withdraw from the related Collection Account and remit to the Holder of the Non-Lead Depositor (includingNote, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified and identification thereofavailable funds, any amounts that represent late collections or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to any third party in accordance with this Agreement), unless such amount would otherwise be included in the monthly remittance to the Holder of such Non-Lead Note for such month; provided, however, that to the extent any such amounts are received 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 prepayments to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified and available funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each provide that the Non-Lead Note Holders (other than any Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notwhich
Appears in 4 contracts
Sources: Co Lender Agreement (BBCMS Mortgage Trust 2025-5c36), Co Lender Agreement (BBCMS Mortgage Trust 2024-C26), Co Lender Agreement (BMO 2024-C8 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial Note initial Holder or its an Affiliate of an initial Holder (an “Initial Note Holder EntityHolder”) is the owner of its Note(s)a Note, such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) the Note or Notes held by such Initial Holder among other New Notes; reducing the Interest Rates of such New Notes or severing its Note(s) the Note held by such Initial Holder into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)such Note, provided that (i) the aggregate principal balance of the such New Notes following such amendments is no greater than the principal balance of the related original Note(s) Note prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) related Note prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, and the parties to the trustee and the applicable master servicer of such Securitization) PSAs in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)such Note, (2) if a any Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is that with respect to Note A-1, then only one component may be designated as the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), ) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Each Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows that (and and, to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, Agreement they shall be deemed incorporated therein and made a part thereof):
(i) the applicable Master Servicer or and Trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note or Property Advance it has made within two (2) Business Days of making such advance;; and
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each Non-Lead Master Servicer the servicers under any other PSA written notice of such determination promptly determination, together with supporting evidence for such determination, within 2 Business Days 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;made.
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any each Non-Lead Note, net of the Servicing Fees and Special Servicing Fees Fee payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Note and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteExcluded Amount, to the Holder of such Note on or prior to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below(as defined herein);
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead other Note that is held by a Securitization, the Master Servicer agrees to deliver or cause (and the Special Servicer agrees to be delivered or make available deliver to the related Master Servicer for delivery) to each of the respective Non-Lead Note Holders or, if such Non-Lead Note is securitized, the respective Non-Lead Master Servicer Servicers, all reports required to be delivered by the Master Servicer to the Certificate Administrator Trustee (and by the Special Servicer to the Master Servicer) under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® CREFC Investor Reporting Package (IRP)Package) pursuant to the terms of the Lead Securitization Servicing Agreement on the earlier of (x) the date such reports are required to the extent related be delivered to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following and (y) the Master Servicer Remittance Date (but in no event less than 2 Business Days after the Mortgage Loan due date); including such information in the Master Servicer’s possession as is reasonably necessary for the each such Non-Lead NoteMaster Servicer to determine the recoverability of P&I Advances;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or and the Special Servicer shall provide agrees to deliver to the Master Servicer for provision by the Master Servicer) (in electronic mediato provide) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement or to the Controlling Class Representative (or analogous term) as such term is defined in the Lead Securitization Servicing Agreement, at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees Trustees and certificateholdersrelated Certificateholders) in accordance with the terms and provisions of this Agreement, Agreement and the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each The Non-Lead Note Holder Holders shall be entitled to the same indemnity with respect to the Mortgage Loan as the Lead Note Holder is provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement; each of the . The Master Servicer, any primary servicer, the Special ServicerServicer and the trustee, the Trustee, certificate administrator and operating advisor under the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian Lead Securitization Servicing Agreement shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor depositors of any public each other Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each Securitization “certifying certification party” and depositor for (i) its their failure to deliver the items in clause (ixviii) below in a timely manner, manner and for any Deficient Exchange Act Deliverable (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of as defined in the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar term thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Securitization Trustee, the Certificate Administrator certificate administrator or other party acting as custodian for the Lead Securitization shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10-K, Form 10-D and 10D, Form 8-K), and (ii) upon request, any other materials specified in each of the related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), other PSAs as the related Non-Lead Depositor or parties to the related Non-Lead Trustee reasonably believes, in good faith, are required applicable Securitization may require in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its their obligations under the Securities ActAct of 1933, the as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)AB, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitizationother applicable law, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as extent applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead depositor in an other Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel responding to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with comments from the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notany
Appears in 4 contracts
Sources: Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-Gc36), Co Lender Agreement (COMM 2016-Ccre28 Mortgage Trust), Co Lender Agreement (CFCRE 2016-C3 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Non- Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who s
Appears in 4 contracts
Sources: Co Lender Agreement (BMO 2023-5c1 Mortgage Trust), Co Lender Agreement (Bank 2023-Bnk46), Co Lender Agreement (MSWF Commercial Mortgage Trust 2023-1)
Provisions Relating to Securitization. (a) For so long as Citi or an Initial Note Holder or its Affiliate of Citi (an the “Initial Note Holder EntityA-1-1 Holder”) is the owner of its Note(s)Note A-1-1, such the Initial Note A-1-1 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-1-1 Notes”) reallocating the principal of its Note(s) Note A-1-1 among other New A-1-1 Notes; reducing the Mortgage Interest Rates of such New A-1-1 Notes or severing its Note(s) the Note A-1-1 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1-1, provided that (i) the aggregate principal balance of the New A-1-1 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-1-1 prior to such amendments, (ii) all New A-1-1 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-1-1 prior to such amendments, (iii) all New A-1-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-1-1 Holder Entity holding the New A-1-1 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Note A-1-2 PSA, the Note A-2 PSA, the Note A-3 PSA, the Note A-4 PSA and the applicable master servicer of such Securitization) Note A-5 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, any reduction of Mortgage Interest Rates or such severing of Note(s)Note A-1-1, (2) if a Note A-1-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The For so long as Citi or an Affiliate of Citi (the “Initial Note A-1-2 Holder”) is the owner of Note A-1-2, the Initial Note A-1-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-1-2 Notes”) reallocating the principal of Note A-1-2 among other New A-1-2 Notes; reducing the Mortgage Interest Rates of such New A-1-2 Notes or severing the Note A-1-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-1-2, provided that (i) the aggregate principal balance of the New A-1-2 Notes following such amendments is no greater than the principal balance of Note A-1-2 prior to such amendments, (ii) all New A-1-2 Notes continue to have the same or a lower interest rate as the Note A-1-2 prior to such amendments, (iii) all New A-1-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-1-2 Holder holding the New A-1-2 Notes shall notify the parties to the Note A-1-1 PSA, the Note A-2 PSA, the Note A-3 PSA, the Note A-4 PSA and the Note A-5 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, any reduction of Mortgage Interest Rates or such severing of Note A-1-2, (2) if Note A-1-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(b).
(c) For so long as Citi or an Affiliate of Citi (the “Initial Note A-2 Holder”) is the owner of Note A-2, the Initial Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of Note A-2 among other New A-2 Notes; reducing the Mortgage Interest Rates of such New A-2 Notes or severing the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the parties to the Note A-1-1 PSA, the Note A-1-2 PSA, the Note A-3 PSA, the Note A-4 PSA and the Note A-5 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, any reduction of Mortgage Interest Rates or such severing of Note A-2, (2) if Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(c).
(d) For so long as Citi or an Affiliate of Citi (the “Initial Note A-3 Holder”) is the owner of Note A-3, the Initial Note A-3 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-3 Notes”) reallocating the principal of Note A-3 among other New A-3 Notes; reducing the Mortgage Interest Rates of such New A-3 Notes or severing the Note A-3 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-3, provided that (i) the aggregate principal balance of the New A-3 Notes following such amendments is no greater than the principal balance of Note A-3 prior to such amendments, (ii) all New A-3 Notes continue to have the same or a lower interest rate as the Note A-3 prior to such amendments, (iii) all New A-3 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-3 Holder holding the New A-3 Notes shall notify the parties to the Note A-1-1 PSA, the Note A-1-2 PSA, the Note A-2 PSA, the Note A-4 PSA and the Note A-5 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, any reduction of Mortgage Interest Rates or such severing of Note A-3, (2) if Note A-3 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(d).
(e) For so long as UBSRES or an Affiliate of UBSRES (the “Initial Note A-4 Holder”) is the owner of Note A-4, the Initial Note A-4 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-4 Notes”) reallocating the principal of Note A-4 among other New A-4 Notes; reducing the Mortgage Interest Rates of such New A-4 Notes or severing the Note A-4 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-4, provided that (i) the aggregate principal balance of the New A-4 Notes following such amendments is no greater than the principal balance of Note A-4 prior to such amendments, (ii) all New A-4 Notes continue to have the same or a lower interest rate as the Note A-4 prior to such amendments, (iii) all New A-4 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-4 Holder holding the New A-4 Notes shall notify the parties to the Note A-1-1 PSA, the Note A-1-2 PSA, the Note A-2 PSA, the Note A-3 PSA and the Note A-5 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, any reduction of Mortgage Interest Rates or such severing of Note A-4, (2) if Note A-4 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-4 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(e).
(f) For so long as UBSRES or an Affiliate of UBSRES (the “Initial Note A-5 Holder”) is the owner of Note A-5, the Initial Note A-5 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-5 Notes”) reallocating the principal of Note A-5 among other New A-5 Notes; reducing the Mortgage Interest Rates of such New A-5 Notes or severing the Note A-5 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-5, provided that (i) the aggregate principal balance of the New A-5 Notes following such amendments is no greater than the principal balance of Note A-5 prior to such amendments, (ii) all New A-5 Notes continue to have the same or a lower interest rate as the Note A-5 prior to such amendments, (iii) all New A-5 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-5 Holder holding the New A-5 Notes shall notify the parties to the Note A-1-1 PSA, the Note A-1-2 PSA, the Note A-2 PSA, the Note A-3 PSA and the Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, any reduction of Mortgage Interest Rates or such severing of Note A-5, (2) if Note A-5 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-5 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(f).
(g) Each Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notLea
Appears in 4 contracts
Sources: Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-C2), Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-P4), Co Lender Agreement (Bank of America Merrill Lynch Commercial Mortgage Trust 2016-Ubs10)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 A-1-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes; provided, however, that for the avoidance of doubt, no such amendment to the Mortgage Loan Documents and this Agreement may require the Master Servicer to violate the Servicing Standard. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi18(b)(x) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related securitization of the planned sale and such Non-Directing Holder’s opportunity to submit an offer on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made
Appears in 4 contracts
Sources: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2025-C64), Co Lender Agreement (BMO 2024-C10 Mortgage Trust), Co Lender Agreement (BBCMS Mortgage Trust 2024-C30)
Provisions Relating to Securitization. (a) For so long as Ladder or GACC or an Initial Note Holder or its Affiliate thereof (an “Initial Note Holder EntityHolder”) is the owner of its Note(sa Note (each, an “Owned Note”), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) the related Owned Note to such New Notes; or severing its Note(sthe related Owned Note (or such New Notes) into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)the related Owned Note, or New Notes, as applicable, provided that (i) the aggregate principal balance of the such New Notes following such amendments is no greater than the principal balance of the related original Note(s) Owned Note, or New Notes, as applicable, prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(srelated Owned Note (or such New Notes) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and Agreement, (iv) the Initial Note Holder Entity holding the such New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee and the applicable master servicer of such Securitization) Lead Securitization in writing of such modified allocations and principal amounts, and (v) the execution of such amendments and New Notes shall not violate the Servicing Standard. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)the related Owned Note, or New Notes, as applicable,, (2) if a an Owned Note or New Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes, as applicable. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a). The Initial Note Holder whose Owned Note or New Note is being reallocated or split pursuant to this Section 18(a) shall reimburse the other Holders for all costs and expenses incurred by the other Holders in connection with the reallocation or split.
(b) The Lead each of the Note Holder agrees that it A-1-B PSA, the Note A-2-A1 PSA, the Note A-2-A2 PSA, the Note A-2-B PSA, the Note A-3 PSA, the Note A-4-B PSA, the Note A-5-A PSA, the Note A-5-B PSA and the Note A-6 PSA shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer applicable master servicer, special servicer or trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) in the Master Servicer shall remit all payments received with respect to any event such Non-Lead NoteNote Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, net of and that in the Servicing Fees and Special Servicing Fees payable to event that the Master Servicer and Special Servicer, as applicable, funds received with respect to such Non-Lead NoteNote are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer, Lead Securitization certificate administrator, Lead Securitization operating advisor or Lead Trustee, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and any other applicable fees (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer, Lead Securitization certificate administrator, Lead Securitization operating advisor or Lead Trustee to pay itself from the Lead Securitization Trust Fund’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to pay the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of trustee and reimbursements payable to the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer, the Special Servicer and the Trustee non-lead trust will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead NoteNote by the Master Servicer or the Lead Trustee, to and (2) clause (v) below and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Note Holder by Servicing Agreement with respect to any provisions therein relating to (1) the applicable Master Servicer Remittance Date for the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note; provided, that any late collections received Note by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports it being understood that the Special Servicer is not required to deliver to the Master Servicermake any Advances) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y2) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect indemnification of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) each of the Master Servicer Indemnified Parties shall be indemnified (as and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to same extent the Lead Securitization Servicing Agreement at the time provided Trust is required to such other party;
(vii) the servicing duties of indemnify each of the Master Servicer and Special Servicer under such Indemnified Parties in respect of other mortgage loans in the Lead Securitization Servicing Agreement shall include the duty Trust pursuant to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to securitization trust holding such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with servicing and administration of the Mortgage Loan (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Serviceror, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each caseoperating advisor, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with provision of services for the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar theretoMortgage Loan) of under the Lead Securitization Servicing AgreementAgreement (collectively, the “Indemnified Items”) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the “Serviced Pari Passu Companion Loan Custodial Account” are received after 3:00 p.m. Eastern time on any given Business Dayinsufficient for reimbursement of such amounts, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled required to enforce reimburse each of the rights applicable Indemnified Parties for its pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under such Non-Lead Servicing Agreement; provided, however, that any Non-Lead Servicing Agreement may include limitations and conditions on the payment or reimbursement of Indemnified Items to the Lead Securitization operating advisor (including limitations and conditions with respect to the timing of such payments or reimbursements and the sources of funds for such payments or reimbursements);
(vi) the related Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Lead Securitization operating advisor and Master Servicer (i) promptly following Securitization of such Non-Lead Note Holder under this Agreement and Securitization Note, notice of the deposit of such Non-Lead Securitization Servicing Agreement;
Note into a Securitization Trust (xiii) each which notice shall also provide contact information for the related Non-Lead Trustee, certificate administrator, Non-Lead Master Servicer Servicer, non-lead special servicer and each 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 Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification and (ii) notice of any subsequent change in the identity of such Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” with respect to such Non-Lead Special Servicer, as Securitization Note under this Agreement (together with the case may be, and the provisions regarding coordination of Advancesrelevant contact information);
(xivvii) if the Mortgage Loan becomes a Defaulted Mortgage Loan Master Servicer and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all be third party beneficiaries of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notforegoing provisions.
Appears in 4 contracts
Sources: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2016-Lc24), Co Lender Agreement (JPMDB Commercial Mortgage Securities Trust 2016-C2), Co Lender Agreement (COMM 2015-Lc23 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as GACC or an Initial Note Holder or its Affiliate of GACC (an the “Initial Note Holder EntityA-2-2 Holder”) is the owner of its Note(s)Note A-2-2, such the Initial Note A-2-2 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2-2 Notes”) reallocating the principal of its Note(s) Note A-2-2 among other New A-2-2 Notes; reducing the Interest Rates of such New A-2-2 Notes or severing its Note(s) the Note A-2-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2-2, provided that (i) the aggregate principal balance of the New A-2-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2-2 prior to such amendments, (ii) all New A-2-2 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-2-2 prior to such amendments, (iii) all New A-2-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2-2 Holder Entity holding the New A-2-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Note A-1 PSA and the applicable master servicer of such Securitization) Note A-2-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of Note(s)Note A-2-2, (2) if a Note A-2-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead For so long as GACC or an Affiliate of GACC (the “Initial Note A-3-1 Holder”) is the owner of Note A-3-1, the Initial Note A-3-1 Holder agrees that it shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-3-1 Notes”) reallocating the principal of Note A-3-1 among other New A-3-1 Notes; reducing the Interest Rates of such New A-3-1 Notes or severing the Note A-3-1 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-3-1, provided that (i) the aggregate principal balance of the New A-3-1 Notes following such amendments is no greater than the principal balance of Note A-3-1 prior to such amendments, (ii) all New A-3-1 Notes continue to have the same or a lower interest rate as the Note A-3 prior to such amendments, (iii) all New A-3-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-3-1 Holder holding the New A-3-1 Notes shall notify the parties to the Note A-1 PSA and the Note A-3-1 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-3-1, (2) if Note A-3-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(c) For so long as GACC or an Affiliate of GACC (the “Initial Note A-3-2 Holder”) is the owner of Note A-3-2, the Initial Note A-3-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-3-2 Notes”) reallocating the principal of Note A-3-2 among other New A-3-2 Notes; reducing the Interest Rates of such New A-3-2 Notes or severing the Note A-3-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-3-2, provided that (i) the aggregate principal balance of the New A-3-2 Notes following such amendments is no greater than the principal balance of Note A-3-2 prior to such amendments, (ii) all New A-3-2 Notes continue to have the same or a lower interest rate as the Note A-3 prior to such amendments, (iii) all New A-3-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-3-2 Holder holding the New A-3-2 Notes shall notify the parties to the Note A-1 PSA and the Note A-3-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-3-2, (2) if Note A-3-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(d) For so long as GACC or an Affiliate of GACC (the “Initial Note A-3-3 Holder”) is the owner of Note A-3-3, the Initial Note A-3-3 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-3-3 Notes”) reallocating the principal of Note A-3-3 among other New A-3-3 Notes; reducing the Interest Rates of such New A-3-3 Notes or severing the Note A-3-3 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-3-3, provided that (i) the aggregate principal balance of the New A-3-3 Notes following such amendments is no greater than the principal balance of Note A-3-3 prior to such amendments, (ii) all New A-3-3 Notes continue to have the same or a lower interest rate as the Note A-3 prior to such amendments, (iii) all New A-3-3 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-3-3 Holder holding the New A-3-3 Notes shall notify the parties to the Note A-1 PSA and the Note A-3-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-3-3, (2) if Note A-3-3 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a)(d).
(e) For so long as GACC or an Affiliate of GACC (the “Initial Note A-4 Holder”) is the owner of Note A-4, the Initial Note A-4 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-4 Notes”) reallocating the principal of Note A-4 among other New A-4 Notes; reducing the Interest Rates of such New A-4 Notes or severing the Note A-4 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-4, provided that (i) the aggregate principal balance of the New A-4 Notes following such amendments is no greater than the principal balance of Note A-4 prior to such amendments, (ii) all New A-4 Notes continue to have the same or a lower interest rate as the Note A-4 prior to such amendments, (iii) all New A-4 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-4 Holder holding the New A-4 Notes shall notify the parties to the Note A-1 PSA and the Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-4, (2) if Note A-4 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-4 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(b).
(f) Each Non-Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer applicable master servicer, special servicer or trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) in the Master Servicer shall remit all payments received with respect to any event such Non-Lead NoteNote Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, net of and that in the Servicing Fees and Special Servicing Fees payable to event that the Master Servicer and Special Servicer, as applicable, funds received with respect to such Non-Lead NoteNote are insufficient to cover such amounts, and any other applicable fees and reimbursements payable (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with the any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead NoteNote by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note Holder by the applicable Master Special Servicer Remittance Date for (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;and
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other be third party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality beneficiaries of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notprovisions.
Appears in 4 contracts
Sources: Co Lender Agreement (JPMDB Commercial Mortgage Securities Trust 2017-C5), Co Lender Agreement (CD 2017-Cd3 Mortgage Trust), Co Lender Agreement (CD 2016-Cd2 Mortgage Trust)
Provisions Relating to Securitization. (a) New Notes. For so long as GACC or an Initial Note Holder or its Affiliate of GACC (an “Initial Note Holder EntityHolder”) is the owner of its Note(s)any Notes, such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes (“Amended Notes”) or additional notes (in either case “New Notes”) reallocating the principal of its Note(sthe Note or Notes that it owns (but in no case any Note that it does not then own) among Amended Notes and New Notes or severing its Note(s) a Note into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)the Note or Notes being amended or created, provided that (i) the aggregate principal balance of the Amended Notes and New Notes following such amendments is no greater than the principal balance of the related original Note(s) Amended Notes and New Notes prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) Amended Note of which it was a part prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis with the Amended Notes and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the each other Holders (orHolder, for as applicable, and, if any other Note that has been contributed to included in a Securitizationsecuritization, to the trustee and the parties under each applicable master servicer of such Securitization) PSA, in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)a Note, (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph Section 18(a). The Initial Note Holder whose Note is being reallocated or split pursuant to this Section 18(a) shall reimburse the other Holders for all costs and expenses incurred by the other Holders in connection with the reallocation or split.
(b) The Each Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and Trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17 and funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) Notice to Parties to the Lead Securitization PSA.
(i) The Note A-1-B1 Holder shall provide the Depositor, the Servicer, and the Special Servicer under the Lead Securitization PSA (as of the Note A-1-B1 Securitization Date) (provided such party is not also a party to the Note A-1-B1 PSA) notice of the Note A-1-B1 Securitization in writing (which may be by email) prior to or promptly following the Note A-1-B1 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-1-B1 PSA and the identity of the Controlling Class Representative under such Note A-1-B1 PSA. In addition, after the Note A-1-B1 Securitization Date, the Note A-1-B1 Holder shall send a copy of the Note A-1-B1 PSA to the Depositor, the Servicer, and the Special Servicer under the Lead Securitization PSA (as of the Note A-1-B1 Securitization Date) (provided such party is not also a party to the Note A-1-B1 PSA).
(ii) The Note A-1-B2 Holder shall provide the Depositor, the Servicer, and the Special Servicer under the Lead Securitization PSA (as of the Note A-1-B2 Securitization Date) (provided such party is not also a party to the Note A-1-B2 PSA) notice of the Note A-1-B2 Securitization in writing (which may be by email) prior to or promptly following the Note A-1-B2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-1-B2 PSA and the identity of the Controlling Class Representative under such Note A-1-B2 PSA. In addition, after the Note A-1-B2 Securitization Date, the Note A-1-B2 Holder shall send a copy of the Note A-1-B2 PSA to the Depositor, the Servicer, and the Special Servicer under the Lead Securitization PSA (as of the Note A-1-B2 Securitization Date) (provided such party is not also a party to the Note A-1-B2 PSA).
(iii) The Note A-2-A Holder shall provide the Depositor, the Servicer, and the Special Servicer under the Lead Securitization PSA (as of the CD1 Securitization Date) (provided such party is not also a party to the CD1 PSA) notice of the CD1 Securitization in writing (which may be by email) prior to or promptly following the CD1 Securitization Date. Such notice shall contain contact information for each of the parties to the CD1 PSA and the identity of the Controlling Class Representative under such CD1 PSA. In addition, after the CD1 Securitization Date, the Note A-2-A Holder shall send a copy of the CD1 PSA to the Depositor, the Servicer, and the Special Servicer under the Lead Securitization PSA (as of the CD1 Securitization Date) (provided such party is not also a party to the CD1 PSA).
(iv) The Note A-3 Holder shall provide the Depositor, the Servicer, and the Special Servicer under the Note A-1-A PSA, the CD1 PSA, the Note A-1-B1 PSA (if then in effect), the Note A-1-B2 PSA (if then in effect) and the Note A-2-B PSA (if then in effect) (provided such parties are not also parties to the Note A-3 PSA) notice of the Note A-3 Securitization in writing (which may be by email) prior to or promptly following the Note A-3 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-3 PSA and the identity of the Controlling Class Representative under such Note A-3 PSA. In addition, after the Note A-3 Securitization Date, the Note A-3 Holder shall send a copy of the Note A-3 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-1-A PSA (provided such party is not also a party to the Note A-3 PSA).
(v) The Note A-4 Holder shall provide the Depositor, the Servicer, and the Special Servicer under the Lead Securitization PSA (as of the CD1 Securitization Date) (provided such party is not also a party to the CD1 PSA) notice of the CD1 Securitization in writing (which may be by email) prior to or promptly following the CD1 Securitization Date. Such notice shall contain contact information for each of the parties to the CD1 PSA and the identity of the Controlling Class Representative under such CD1 PSA. In addition, after the CD1 Securitization Date, the Note A-4 Holder shall send a copy of the CD1 PSA to the Depositor, the Servicer, and the Special Servicer under the Lead Securitization PSA (as of the CD1 Securitization Date) (provided such party is not also a party to the CD1 PSA).
(d) The Lead Securitization PSA shall:
(i) provide that the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) provide that if the Master Servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within two Business Days 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 nonrecoverabilitymade;
(iii) provide that the Master Servicer shall remit all payments received (or advanced) with respect to any Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect Trustee, to such the Non-Lead Note, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports provide that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related each master servicer under a Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Noteon a monthly basis;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subany Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10-K, Form 10-D and 10D, Form 8-K), and (ii) upon request, any other materials specified in each of the related other Servicing Agreements as the parties to each Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required may require in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its their obligations under the Securities ActAct of 1933, the as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB AB, and Form SF-3 and (2) any other applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without law. Without limiting the generality of the foregoing (x) the foregoing, each Lead Depositor or the related Note Holder for a Lead Securitization shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days to the depositor and the Trustee for any prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, Securitization a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special each Lead Servicer (or any replacement Master Servicer or Special Servicer, as applicableat the expense of the Lead Note Holder) shallwill be required, upon reasonable prior written request, and subject to provide to the right of depositor and the Master Servicer or the Special Servicer, as the case may be, Trustee for any prior Securitization any other information required to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained comply in a Lead Securitization timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), for inclusion in and with respect to the disclosure materials (orLead Servicers, in the case of a replacement Special Servicerupon prior written request, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the related Non-Lead SecuritizationServicing Agreements;
(xvi) provide that the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with Agreement shall include the duty to service each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations Note on behalf of the related Trustees and coordination) to the same extent as such party is required to cooperate related Certificate holders in accordance with the Lead Depositor under Article X terms and provisions of this Agreement;
(or any article substantially similar theretovii) of the Lead Securitization Servicing Agreement and in connection provide that, with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any respect to any/each Non-Lead Depositor (including reasonable legal fees Note, the Master Servicer shall withdraw from the related Collection Account and expenses remit to the Holder of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer Note, within one (1) Business Day of receipt and identification thereofof properly identified funds, any amounts that represent late collections or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to any third party in accordance with this Agreement), unless such amount would otherwise be included in the monthly remittance to the Holder of such Non-Lead Note for such month;; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late later collections to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide nota
Appears in 4 contracts
Sources: Co Lender Agreement (COMM 2016-Dc2 Mortgage Trust), Co Lender Agreement (CD 2016-Cd1 Mortgage Trust), Co Lender Agreement (CD 2016-Cd2 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as Citi or an Initial Note Holder or its Affiliate of Citi (an the “Initial Note Holder EntityA-1 Holder”) is the owner of its Note(s)Note A-1, such the Initial Note A-1 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-1 Notes”) reallocating the principal of its Note(s) Note A-1 among other New A-1 Notes; reducing the Mortgage Interest Rates of such New A-1 Notes or severing its Note(s) the Note A-1 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1, provided that (i) the aggregate principal balance of the New A-1 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-1 prior to such amendments, (iii) all New A-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-1 Holder Entity holding the New A-1 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Note A-2 PSA (if the Note A-2 PSA is different from the Note A-1 PSA), the Note A-3 PSA, the Note A-4A PSA and the applicable master servicer of such Securitization) Note A-4B PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, any reduction of Mortgage Interest Rates or such severing of Note(s)Note A-1, (2) if a Note A-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead For so long as Ladder or an Affiliate of Ladder (the “Initial Note Holder agrees that it shall cause A-2 Holder”) is the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) the Master Servicer or Trustee shall be required to provide written notice to each Non-Lead Master Servicer and each Non-Lead Trustee owner of any P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable AdvanceA-2, the Master Servicer Initial Note A-2 Holder shall provide each Non-Lead Master Servicer written notice of such determination promptly after such determination was made together with such reports that have the Master Servicer delivered to the Special Servicer or Trustee in connection with notification of its determination of nonrecoverability;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Noteright, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant subject to the terms of the Lead Securitization Servicing Agreement Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of Note A-2 among other New A-2 Notes; reducing the Mortgage Interest Rates of such New A-2 Notes or severing the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the extent related then outstanding principal balance of Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the Mortgage Loanterms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the parties to the Note A-1 PSA, the Mortgaged Property, such Non-Lead NoteNote A-3 PSA, the Master ServicerNote A-4A PSA and the Note A-4B PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(vi1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and Special Servicer, as applicable, shall provide this Agreement (or to amend and restate the Special Servicer Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, any reduction of Mortgage Interest Rates or such severing of Note A-2, (2) if Note A-2 is severed into “component” notes, such component notes shall provide to each have their same rights as the Master Servicer for provision by the Master Servicer) respective original Note and (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii3) the servicing duties of each definition of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan term “Securitization” and all of the Notes on behalf related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(b).
(c) For so long as Citi or an Affiliate of Citi (the “Initial Note A-3 Holder”) is the owner of Note A-3, the Initial Note A-3 Holder shall have the right, subject to the terms of the Holders Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (including in either case “New A-3 Notes”) reallocating the respective trustees and certificateholders) principal of Note A-3 among other New A-3 Notes; reducing the Mortgage Interest Rates of such New A-3 Notes or severing the Note A-3 into one or more further “component” notes in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled aggregate principal amount equal to the same indemnity as the Lead then outstanding principal balance of Note Holder under the Lead Securitization Servicing Agreement; each of the Master ServicerA-3, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent provided that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure the aggregate principal balance of the New A-3 Notes following such amendments is no greater than the principal balance of Note A-3 prior to deliver the items in clause (ix) below in a timely mannersuch amendments, (ii) its failure all New A-3 Notes continue to perform its obligations have the same or a lower interest rate as the Note A-3 prior to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure periodamendments, (iii) all New A-3 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the failure terms of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing this Agreement by the time required and/or and (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect the Initial Note A-3 Holder holding the New A-3 Notes shall notify the parties to any Non-Lead Securitization that is subject to reporting requirements under the Securities ActNote A-1 PSA, the Exchange Act (including Rule 15Ga-1)Note A-2 PSA, the Note A-4A PSA and Regulation ABthe Note A-4B PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (a1) the Master ServicerServicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, any primary servicerreduction of Mortgage Interest Rates or such severing of Note A-3, (2) if Note A-3 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(c).
(d) For so long as Ladder or an Affiliate of Ladder (the “Initial Note A-4A Holder”) is the owner of Note A-4A, the Special ServicerInitial Note A-4A Holder shall have the right, subject to the Trusteeterms of the Mortgage Loan Documents, the Certificate Administrator or other party acting as custodian for the Lead Securitization shall be required to deliver (and shall be required to cause each the Borrower to execute amended and restated notes or additional notes (in either case “New A-4A Notes”) reallocating the principal of Note A-4A among other servicer and servicing function participant (within New A-4A Notes; reducing the meaning Mortgage Interest Rates of Items 1123 and 1122such New A-4A Notes or severing the Note A-4A into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-4A, respectively, of Regulation AB) retained or engaged by it to deliver; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reportsaggregate principal balance of the New A-4A Notes following such amendments is no greater than the principal balance of Note A-4A prior to such amendments, certifications, compliance statements, accountants’ assessments and attestations, and 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 requestall New A-4A Notes continue to have the same or a lower interest rate as the Note A-4A prior to such amendments, any other materials specified in (iii) all New A-4A Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the related Non-Lead Securitization Servicing Agreement, in the case terms of clauses (i) this Agreement and (ii)iv) the Initial Note A-4A Holder holding the New A-4A Notes shall notify the parties to the Note A-1 PSA, as the related Non-Lead Depositor or Note A-2 PSA, the related Non-Lead Trustee reasonably believesNote A-3 PSA and the Note A-4B PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and Special Servicer this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right all of the Master Servicer Holders solely for the purpose of reflecting such reallocation of principal, any reduction of Mortgage Interest Rates or the Special Servicersuch severing of Note A-4A, (2) if Note A-4A is severed into “component” notes, such component notes shall each have their same rights as the case may be, to review respective original Note and approve such disclosure materials, permit a holder (3) the definition of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost term “Securitization” and all of the related Non-Lead Sponsor) defined terms may be amended (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicernew terms added, as applicable), necessary) to reflect the New A-4A Notes. Rating Agency Confirmation shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each not be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and for any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect required to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with facilitate the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notthis paragraph 18(d).
Appears in 4 contracts
Sources: Co Lender Agreement (JPMCC Commercial Mortgage Securities Trust 2016-Jp4), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2016-C37), Co Lender Agreement (CD 2016-Cd2 Mortgage Trust)
Provisions Relating to Securitization. (a) For Subject to the terms of the Loan Agreement, for so long as Natixis or an Initial Note Holder or its Affiliate of Natixis (an the “Initial Note Holder EntityA-1 Holder”) is the owner of its Note(s)Note A-1, such the Initial Note A-1 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-1 Notes”) reallocating the principal of its Note(s) Note A-1 among other New A-1 Notes; reducing the Interest Rates of such New A-1 Notes or severing its Note(s) the Note A-1 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1, provided that (i) the aggregate principal balance of the New A-1 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-1 prior to such amendments, (iii) all New A-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-1 Holder Entity holding the New A-1 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee and the applicable master servicer of such Securitization) Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of Note(s)Note A-1, (2) if a Note A-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead For so long as Natixis or an Affiliate of Natixis (the “Initial Note A-2 Holder”) is the owner of Note A-2, the Initial Note A-2 Holder agrees that it shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the parties to the Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-2, (2) if Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(b).
(c) For so long as Natixis or an Affiliate of Natixis (the “Initial Note A-3 Holder”) is the owner of Note A-3, the Initial Note A-3 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-3 Notes”) reallocating the principal of Note A-3 among other New A-3 Notes; reducing the Interest Rates of such New A-3 Notes or severing the Note A-3 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-3, provided that (i) the aggregate principal balance of the New A-3 Notes following such amendments is no greater than the principal balance of Note A-3 prior to such amendments, (ii) all New A-3 Notes continue to have the same or a lower interest rate as the Note A-3 prior to such amendments, (iii) all New A-3 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-3 Holder holding the New A-3 Notes shall notify the parties to the Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-3, (2) if Note A-3 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(c).
(d) For so long as Natixis or an Affiliate of Natixis (the “Initial Note A-5 Holder”) is the owner of Note A-5, the Initial Note A-5 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-5 Notes”) reallocating the principal of Note A-5 among other New A-5 Notes; reducing the Interest Rates of such New A-5 Notes or severing the Note A-5 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-5, provided that (i) the aggregate principal balance of the New A-5 Notes following such amendments is no greater than the principal balance of Note A-5 prior to such amendments, (ii) all New A-5 Notes continue to have the same or a lower interest rate as the Note A-5 prior to such amendments, (iii) all New A-5 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-5 Holder holding the New A-5 Notes shall notify the parties to the Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-5, (2) if Note A-5 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-5 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(d).
(e) Each Non-Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer or Trustee applicable master servicer and trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer applicable master servicer, special servicer or trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) in the Master Servicer shall remit all payments received with respect to any event such Non-Lead NoteNote Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, net of and that in the Servicing Fees and Special Servicing Fees payable to event that the Master Servicer and Special Servicer, as applicable, funds received with respect to such Non-Lead NoteNote are insufficient to cover such amounts, and any other applicable fees and reimbursements payable (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead NoteNote by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note Holder by the applicable Master Special Servicer Remittance Date for (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;and
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide be third party beneficiaries of the foregoing provisions.
(f) The Note A-1 Holder shall give each of the parties to the Master Servicer for provision by the Master Servicer) Note A-4 PSA (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other that will not also be a party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viiNote A-1 PSA) the servicing duties of each notice of the Master Servicer and Special Servicer under the Lead Note A-1 Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice writing (which may be by e-mail) in a timely manner (but no later not less than three (3) Business Days 5 business days’ prior to closing) the Note A-1 Securitization Date. Such notice shall contain contact information for each of the occurrence parties to the Note A-1 PSA and the identity of the Controlling Class Representative under such SecuritizationNote A-1 PSA. In addition, and (2) no later than one (1) Business Day following after the closing date of such SecuritizationNote A-1 Securitization Date, the Note A-1 Holder shall send a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) Note A-1 PSA to each of the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject parties to the right Note A-4 PSA.
(g) The Note A-2 Holder shall give each of the Master Servicer or parties to the Special Servicer, as Note A-4 PSA (that will not also be a party to the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost A-2 PSA) notice of the related Non-Lead Sponsor) (or, Note A-2 Securitization in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice writing (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later not less than three (3) Business Days 5 business days’ prior to the date Note A-2 Securitization Date. Such notice shall contain contact information for each of effectiveness of such amendment, and, on the date of effectiveness of such amendment parties to the Lead Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Servicing AgreementDate, provide the Note A-2 Holder shall send a copy of such amendment in an ▇▇▇▇▇-compatible format the Note A-2 PSA to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicerparties to the Note A-4 PSA.
(h) The Note A-3 Holder shall give each of the parties to the Note A-4 PSA (that will not also be a party to the Note A-3 PSA) notice of the Note A-3 Securitization in writing (which may be by e-mail) not less than 5 business days’ prior to the Note A-3 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-3 PSA and the identity of the Controlling Class Representative under such Note A-3 PSA. In addition, after the Note A-3 Securitization Date, the Special ServicerNote A-3 Holder shall send a copy of the Note A-3 PSA to each of the parties to the Note A-4 PSA.
(i) The Note A-5 Holder shall give each of the parties to the Note A-4 PSA (that will not also be a party to the Note A-5 PSA) notice of the Note A-5 Securitization in writing (which may be by e-mail) not less than 5 business days’ prior to the Note A-5 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-5 PSA and the identity of the Controlling Class Representative under such Note A-5 PSA. In addition, after the Note A-5 Securitization Date, the Custodian and Note A-5 Holder shall send a copy of the Trustee and Note A-5 PSA to each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under of the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) parties to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notA-4 PSA.
Appears in 3 contracts
Sources: Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-P3), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2016-Nxs5), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2015-Nxs4)
Provisions Relating to Securitization. (a) For so long as CCRE or an Initial Note Holder or its Affiliate of CCRE (an the “Initial Note Holder EntityA-1 Holder”) is the owner of its Note(s)Note A-2, such the Initial Note A-2 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of its Note(s) Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing its Note(s) the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder Entity holding the New A-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Note A-1 PSA and the applicable master servicer of such Securitization) Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of Note(s)Note A-2, (2) if a Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead For so long as CCRE or an Affiliate of CCRE (the “Initial Note A-3 Holder”) is the owner of Note A-3, the Initial Note A-3 Holder agrees that it shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-3 Notes”) reallocating the principal of Note A-3 among other New A-3 Notes; reducing the Interest Rates of such New A-3 Notes or severing the Note A-3 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-3, provided that (i) the aggregate principal balance of the New A-3 Notes following such amendments is no greater than the principal balance of Note A-3 prior to such amendments, (ii) all New A-3 Notes continue to have the same or a lower interest rate as the Note A-3 prior to such amendments, (iii) all New A-3 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-3 Holder holding the New A-3 Notes shall notify the parties to the Note A-1 PSA and the Note A-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-3, (2) if Note A-3 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(b).
(c) Each Non-Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and Trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(1) The Note A-2 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that party is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA.
(2) The Note A-3 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that party is not also a party to the Note A-3 PSA) notice of the Note A-3 Securitization in writing (which may be by email) prior to or promptly following the Note A-3 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-3 PSA and the identity of the Controlling Class Representative under such Note A-3 PSA. In addition, after the Note A-3 Securitization Date, the Note A-3 Holder shall send a copy of the Note A-3 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA.
(e) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within two Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect Trustee, to such the Non-Lead Note, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related each master servicer under a Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Noteon a monthly basis;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subany Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10-K, Form 10-D and 10D, Form 8-K), and (ii) upon request, any other materials specified in each of the related other Servicing Agreements as the parties to each Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required may require in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its their obligations under the Securities ActAct of 1933, the as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB AB, and Form SF-3 and (2) any other applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without law. Without limiting the generality of the foregoing (x) the foregoing, each Lead Depositor or the related Note Holder for a Lead Securitization shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days to the depositor and the Trustee for any prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, Securitization a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special each Lead Servicer (or any replacement Master Servicer or Special Servicer, as applicableat the expense of the Lead Note Holder) shallwill be required, upon reasonable prior written request, and subject to provide to the right of depositor and the Master Servicer or the Special Servicer, as the case may be, Trustee for any prior Securitization any other information required to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained comply in a Lead Securitization timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), for inclusion in the disclosure materials (orand, in the case of a replacement Special Servicer, for inclusion in a Form 8-Kclauses (x) relating to any securitization of the related Non-Lead Note, and (zy) and with respect to the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special ServicerLead Servicers, as applicable)upon prior written request, shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization Securitization. As used in this Agreement, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the United States Securities and Exchange Commission (the “Commission”) in each casethe adopting release (Asset-Backed Securities, at Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506,1,631 (Jan. 7, 2005)) or by the cost staff of the related Non-Lead Sponsor)Commission, and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which or as may be provided by e-mail) of such proposed amendment the Commission or its staff time to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteetime. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the related Non-Lead SecuritizationServicing Agreements;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with Agreement shall include the duty to service each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations Note on behalf of the related Trustees and coordination) to the same extent as such party is required to cooperate related Certificate holders in accordance with the Lead Depositor under Article X (or any article substantially similar thereto) terms and provisions of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing this Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xivii) any late collections received by the Master Servicer from the Borrower that are allocable to for which a P&I Advance has already been paid by a master servicer or trustee under a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee Servicing Agreement shall be remitted by the Master Servicer to such master servicer or Trustee under a Non-Lead Master Servicer Servicing Agreement, as applicable, within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an Holders are intended third-party beneficiary beneficiaries in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;; and
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide not.
Appears in 3 contracts
Sources: Co Lender Agreement (CFCRE 2016-C4 Mortgage Trust), Co Lender Agreement (CFCRE 2016-C3 Mortgage Trust), Co Lender Agreement (COMM 2015-Ccre27 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial Note A-4-2 is not in a securitization, the Note A-4-2 Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-4-2 Notes”) reallocating the principal of its Note(s) Note A-4-2 among other New A-4-2 Notes; reducing the Interest Rates of such New A-4-2 Notes or severing its Note(s) the Note A-4-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-4-2, provided that (i) the aggregate principal balance of the New A-4-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-4-2 prior to such amendments, (ii) all New A-4-2 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-4-1 prior to such amendments, (iii) all New A-4-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-4-2 Holder Entity holding the New A-4-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Note A-1 PSA, the Note A-2 PSA and the applicable master servicer of such Securitization) C4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of Note(s)Note A-4-2, (2) if a Note A-4-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-4-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a18(c).
(b) The Each Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and Trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-1 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-2 PSA (provided that party is not also a party to the Note A-1 PSA) notice of the Note A-1 Securitization in writing (which may be by email) prior to or promptly following the Note A-1 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-1 PSA and the identity of the Controlling Class Representative under such Note A-1 PSA. In addition, after the Note A-1 Securitization Date, the Note A-1 Holder shall send a copy of the Note A-1 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-2 PSA, C4 PSA and the Note A-4-2 PSA (provided such party is not also a party to the Note A-1 PSA).
(d) The Note A-3 Holder and Note A-4-1 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that party is not also a party to the C4 PSA) notice of the C4 Securitization in writing (which may be by email) prior to or promptly following the C4 Securitization Date. Such notice shall contain contact information for each of the parties of the C4 PSA and the identity of the Controlling Class Representative under such C4 PSA. In addition, after the C4 Securitization Date, the Note A-3 Holder and the Note A-4-1 Holder shall send a copy of the C4 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA, the Note A-2 PSA and the Note A-4-2 PSA (provided such party is not also a party to the C4 PSA).
(e) The Note A-4-2 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that party is not also a party to the Note A-4-2 PSA) notice of the Note A-4-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-4-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-4-2 PSA and the identity of the Controlling Class Representative under such Note A-4-2 PSA. In addition, after the Note A-4-2 Securitization Date, the Note A-4-2 Holder shall send a copy of the Note A-4-2 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA, the Note A-2 PSA and the C4 PSA (provided such party is not also a party to the Note A-4-2 PSA).
(f) The Note A-1 PSA shall:
(i) provide that the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) provide that if the Master Servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within two Business Days 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 nonrecoverabilitymade;
(iii) provide that the Master Servicer shall remit all payments received (or advanced) with respect to any Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect Trustee, to such the Non-Lead Note, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports provide that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related each master servicer under a Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Noteon a monthly basis;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subany Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10-K, Form 10-D and 10D, Form 8-K), and (ii) upon request, any other materials specified in each of the related other Servicing Agreements as the parties to each Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required may require in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its their obligations under the Securities ActAct of 1933, the as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB AB, and Form SF-3 and (2) any other applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without law. Without limiting the generality of the foregoing (x) the foregoing, each Lead Depositor or the related Note Holder for a Lead Securitization shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days to the depositor and the Trustee for any prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, Securitization a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special each Lead Servicer (or any replacement Master Servicer or Special Servicer, as applicableat the expense of the Lead Note Holder) shallwill be required, upon reasonable prior written request, and subject to provide to the right of depositor and the Master Servicer or the Special Servicer, as the case may be, Trustee for any prior Securitization any other information required to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained comply in a Lead Securitization timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), for inclusion in and with respect to the disclosure materials (orLead Servicers, in the case of a replacement Special Servicerupon prior written request, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the related Non-Lead SecuritizationServicing Agreements;
(xvi) provide that the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with Agreement shall include the duty to service each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations Note on behalf of the related Trustees and coordination) to the same extent as such party is required to cooperate related Certificate holders in accordance with the Lead Depositor under Article X (or any article substantially similar thereto) terms and provisions of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing this Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xivii) provide that any late collections received by the Master Servicer from the Borrower that are allocable to for which a P&I Advance has already been paid by a master servicer or trustee under a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee Servicing Agreement shall be remitted by the Master Servicer to such master servicer or trustee under a Non-Lead Master Servicer Servicing Agreement, as applicable, within one (1) Business Day of receipt and identification thereofof properly identified funds; 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 later collections to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each provide that the Non-Lead Note Holder is an Holders are intended third-party beneficiary beneficiaries in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) provide that each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivx) if provide that it shall not be amended in a manner that materially and adversely affects the Mortgage Loan becomes a Defaulted Mortgage Loan and rights of the Special Servicer determines to sell the Non-Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right Holders without their consent; and
(xi) satisfy ▇▇▇▇▇’▇ rating methodology related to permitted investments and the obligation eligible accounts applicable to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notsecurities rated “Aaa” by ▇▇▇▇▇’▇.
Appears in 3 contracts
Sources: Co Lender Agreement (SG Commercial Mortgage Securities Trust 2016-C5), Co Lender Agreement (CFCRE 2016-C3 Mortgage Trust), Co Lender Agreement (CFCRE 2016-C4 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as Ladder or an Initial Note Holder or its Affiliate of Ladder (an “Initial Note Holder EntityHolder”) is the owner of its Note(s)any Note, such the Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) the applicable Note among other New Notes or severing its Note(s) the applicable Note into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)such Note, provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) such Note prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) such Note prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and Agreement, (iv) the Initial Note Holder Entity holding the New Notes shall notify the each other Holders (orHolder, for as applicable, and, if any other Note that has been contributed to included in a Securitizationsecuritization, to the trustee and the parties under each applicable master servicer of such Securitization) PSA, in writing of such modified allocations and principal amounts, and (v) the execution of such amendments and New Notes shall not violate the Servicing Standard. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)any Note held by the Initial Note Holder, (2) if a any Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a). The Initial Note Holder whose Note is being reallocated or split pursuant to this Section 18(a) shall reimburse the other Holders for all costs and expenses incurred by the other Holders in connection with the reallocation or split.
(b) The Each Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer applicable master servicer, special servicer or trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) in the Master Servicer shall remit all payments received with respect to any event such Non-Lead NoteNote Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, net of and that in the Servicing Fees and Special Servicing Fees payable to event that the Master Servicer and Special Servicer, as applicable, funds received with respect to such Non-Lead NoteNote are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer, Lead Securitization certificate administrator, Lead Securitization operating advisor or Lead Trustee, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and any other applicable fees (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer, Lead Securitization certificate administrator, Lead Securitization operating advisor or Lead Trustee to pay itself from the Lead Securitization Trust Fund’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to pay the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of trustee and reimbursements payable to the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer, the Special Servicer and the Trustee non-lead trust will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead NoteNote by the Master Servicer or the Lead Trustee, to and (2) clause (v) below and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Note Holder by Servicing Agreement with respect to any provisions therein relating to (1) the applicable Master Servicer Remittance Date for the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note; provided, that any late collections received Note by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports it being understood that the Special Servicer is not required to deliver to the Master Servicermake any Advances) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y2) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect indemnification of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any pooling and servicing agreement relating to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) each of the Master Servicer Indemnified Parties shall be indemnified (as and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to same extent the Lead Securitization Servicing Agreement at the time provided Trust is required to such other party;
(vii) the servicing duties of indemnify each of the Master Servicer and Special Servicer under such Indemnified Parties in respect of other mortgage loans in the Lead Securitization Servicing Agreement shall include the duty Trust pursuant to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to securitization trust holding such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with servicing and administration of the Mortgage Loan (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Serviceror, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each caseoperating advisor, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with provision of services for the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar theretoMortgage Loan) of under the Lead Securitization Servicing AgreementAgreement (collectively, the “Indemnified Items”) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the “Serviced Pari Passu Companion Loan Custodial Account” are received after 3:00 p.m. Eastern time on any given Business Dayinsufficient for reimbursement of such amounts, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled required to enforce reimburse each of the rights applicable Indemnified Parties for its pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under such Non-Lead Servicing Agreement; provided, however, that any Non-Lead Servicing Agreement may include limitations and conditions on the payment or reimbursement of Indemnified Items to the Lead Securitization operating advisor (including limitations and conditions with respect to the timing of such payments or reimbursements and the sources of funds for such payments or reimbursements);
(vi) the related Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Lead Securitization operating advisor and Master Servicer (i) promptly following Securitization of such Non-Lead Note Holder under this Agreement and Securitization Note, notice of the deposit of such Non-Lead Securitization Servicing Agreement;
Note into a Securitization Trust (xiii) each which notice shall also provide contact information for the related Non-Lead Trustee, certificate administrator, Non-Lead Master Servicer Servicer, non-lead special servicer and each 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 Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification and (ii) notice of any subsequent change in the identity of such Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” with respect to such Non-Lead Special Servicer, as Securitization Note under this Agreement (together with the case may be, and the provisions regarding coordination of Advancesrelevant contact information);
(xivvii) if the Mortgage Loan becomes a Defaulted Mortgage Loan Master Servicer and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all be third party beneficiaries of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notforegoing provisions.
Appears in 3 contracts
Sources: Co Lender Agreement (COMM 2016-Ccre28 Mortgage Trust), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2015-P2), Co Lender Agreement (COMM 2015-Lc23 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial Note A-2 is not in a securitization, the Note A-2 Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of its Note(s) Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing its Note(s) the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder Entity holding the New A-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Note A-1 PSA and the applicable master servicer of such Securitization) Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of Note(s)Note A-2, (2) if a Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Each Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and Trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that party is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided such party is not also a party to the Note A-2 PSA).
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within two Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect Trustee, to such the Non-Lead Note, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related each master servicer under a Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Noteon a monthly basis;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subany Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10-K, Form 10-D and 10D, Form 8-K), and (ii) upon request, any other materials specified in each of the related other Servicing Agreements as the parties to each Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required may require in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its their obligations under the Securities ActAct of 1933, the as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB AB, and Form SF-3 and (2) any other applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without law. Without limiting the generality of the foregoing (x) the foregoing, each Lead Depositor or the related Note Holder for a Lead Securitization shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days to the depositor and the Trustee for any prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, Securitization a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special each Lead Servicer (or any replacement Master Servicer or Special Servicer, as applicableat the expense of the Lead Note Holder) shallwill be required, upon reasonable prior written request, and subject to provide to the right of depositor and the Master Servicer or the Special Servicer, as the case may be, Trustee for any prior Securitization any other information required to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained comply in a Lead Securitization timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), for inclusion in and, with respect to the disclosure materials (orLead Servicers, in the case of a replacement Special Servicerupon prior written request, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization Securitization. As used in this Agreement, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (in each case, at the cost of the related Non-Lead SponsorRegulation AB), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement17 C.F.R. §§ 229.1100-229.1125, the party requesting as such amendment shall provide written notice (which may be amended from time to time, and subject to such clarification and interpretation as have been provided by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format ▇ ▇▇▇▇▇▇ 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 such Non-Lead Depositor and time, in each case as effective from time to time as of the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the related Non-Lead SecuritizationServicing Agreements;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with Agreement shall include the duty to service each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations Note on behalf of the related Trustees and coordination) to the same extent as such party is required to cooperate related Certificate holders in accordance with the Lead Depositor under Article X (or any article substantially similar thereto) terms and provisions of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing this Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xivii) any late collections received by the Master Servicer from the Borrower that are allocable subsequent to 3:00 p.m. (New York City time) on the related Due Date therefor for which a P&I Advance has already been paid by a master servicer or Trustee under a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee Servicing Agreement shall be remitted by the Master Servicer to such master servicer or trustee under a Non-Lead Master Servicer Servicing Agreement, as applicable, within one (1) Business Day of receipt and identification thereof; providedafter the Determination Date, however, that unless such amount would otherwise be included in the monthly remittance to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit lead Note Holders for such amounts within two (2) Business Days of receipt of properly identified fundsmonth;
(xiiviii) each the Non-Lead Note Holder is an Holders are intended third-party beneficiary beneficiaries in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;; and
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide not.
Appears in 3 contracts
Sources: Co Lender Agreement, Co Lender Agreement (COMM 2016-Dc2 Mortgage Trust), Co Lender Agreement (COMM 2016-Ccre28 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi18(b)(x) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day business day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related securitization of the planned sale and such Non-Directing Holder’s opportunity to submit an offer on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or the failure to remit to the Master Servicer for deposit into the Collection Account or the related Loan Combination Custodial Account, as appli
Appears in 3 contracts
Sources: Co Lender Agreement (BBCMS Mortgage Trust 2023-5c23), Co Lender Agreement (Benchmark 2023-V4 Mortgage Trust), Co Lender Agreement (BMO 2023-5c2 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an any Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(srelated Note (for purposes of this Section 18(a), the “Subject Note”, then such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) the Subject Note among the New Notes; reducing the Mortgage Interest Rates of such New Notes or severing its Note(s) the Subject Note into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)the Subject Note, provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) Subject Note prior to such amendments, (ii) all New Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Subject Note prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Note Holders (or, for if any such other Note that has been contributed to shall have included in a Securitization, then it shall notify the parties to the trustee and the applicable master servicer of PSA governing such Securitizationother Note) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, any reduction of Mortgage Interest Rates or such severing of Note(s)the Subject Note, (2) if a the Subject Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Subject Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph Section 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any each Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such each Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related each Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the such Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or to make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the such Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related any Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any each Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related any Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related such Non-Lead Depositor or the related such Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)) or its obligations with respect to any Deficient Exchange Act Deliverables, (b) without limiting the generality of the foregoing (x) the applicable Depositor for the Lead Depositor Securitization or the related Holder shall provide or cause to be provided to any related each Non-Lead Depositor and any each Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day business day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any a Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related applicable Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in or a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in or a Form 8-K) K relating to any securitization of the related a Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related applicable Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any each Non-Lead Depositor and the related each Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such each Non-Lead Depositor and the related each Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a each Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such the applicable Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Note Holder;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or the failure to remit to the Master Servicer for deposit into the Collection Account or the related Loan Combination Custodial Account, as applicable, any amount required to be so remitted by the Special Servicer within one (1) Business Day after the date such remittance was to be made; (iii) the qualification, downgrade or withdrawal, or placing on “watch status” in contemplation of a rating downgrade or withdrawal of the ratings of any class of certificates issued in connection with any Non-Lead Securitization by the rating agencies rating such securities (and such qualification, downgrade, withdrawal or “watch status” placement shall not have been withdrawn by such rating agencies within sixty (60) days of actual knowledge of such event by the Master Servicer or the Special Servicer, as the case may be), and publicly citing servicing concerns with the Master Servicer or Special Servicer, as applicable, as the sole or a material factor in such rating action; and (iv) the failure to pro
Appears in 3 contracts
Sources: Co Lender Agreement (CD 2017-Cd4 Mortgage Trust), Co Lender Agreement (Citigroup Commercial Mortgage Trust 2017-P7), Co Lender Agreement (JPMDB Commercial Mortgage Securities Trust 2017-C5)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 A-1-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes; provided, however, that for the avoidance of doubt, no such amendment to the Mortgage Loan Documents and this Agreement may require the Master Servicer to violate the Servicing Standard. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of deliver reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals withdraw from accounts maintained by it and remittances remit to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notSpe
Appears in 3 contracts
Sources: Co Lender Agreement (BMO 2024-C10 Mortgage Trust), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2024-C63), Co Lender Agreement (BBCMS Mortgage Trust 2024-C28)
Provisions Relating to Securitization. (a) For so long as an Initial Any Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan DocumentsDocuments and so long as the related Note is not held by a Securitization Trust, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) such Note among the New Notes; reducing the Mortgage Interest Rates of such New Notes or severing its Note(s) such Note into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)such Note, provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) such Note prior to such amendments, (ii) all New Notes continue to have the same weighted average or a lower interest rate as the original Note(s) such Note prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Note Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, any reduction of Mortgage Interest Rates or such severing of Note(s)the subject Note, (2) if a the subject Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if that only one such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the may be named in place of Note A-1 A-1-A in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), ) and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note Note(s) within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note Note(s) or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any each Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the such Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or to make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the such Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any each Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related such Non-Lead Depositor or the related such Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related each Non-Lead Depositor and any each Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day business day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder Holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related such Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any each Non-Lead Depositor and the related each Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such each Non-Lead Depositor and the related each Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a any Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a any Non-Lead Note or reimbursable to a the related Non-Lead Master Servicer or a the related Non-Lead Trustee shall be remitted by the Master Servicer to such the related Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such the related Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it Agreement shall have provide for the right and the obligation to sell sale of all of the Notes as notes evidencing one whole loan as described in accordance with the terms of Section 13(c) hereof;
(xiv) the Lead Securitization Servicing Agreement. In Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any such sale, each Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or the failure to remit to the Master Servicer for deposit into the Collection Account or the related Loan Combination Custodial Account, as applicable, any amount required to be so remitted by the Special Servicer within one (1) Business Day after the date such remittance was to be made; (iii) the qualification, downgrade or withdrawal, or placing on “watch status” in contemplation of a rating downgrade or withdrawal of the ratings of any class of certificates issued in connection with any Non-Lead Securitization by the rating agencies rating such securities (and such qualification, downgrade, withdrawal or “watch status” placement shall not have been withdrawn by such rating agencies within sixty (60) days of actual knowledge of such event by the Master Servicer or the Special Servicer, as the case may be), and publicly citing servicing concerns with the Master Servicer or Special Servicer, as applicable, as the sole or a material factor in such rating action; and (iv) the failure to provide notto any Non-Lead Note Holder (if and to the extent required under the related Non-Lead
Appears in 3 contracts
Sources: Co Lender Agreement (Citigroup Commercial Mortgage Trust 2018-B2), Co Lender Agreement (BENCHMARK 2018-B2 Mortgage Trust), Co Lender Agreement (Benchmark 2018-B1 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes; provided, however, that for the avoidance of doubt, no such amendment to the Mortgage Loan Documents and this Agreement may require the Master Servicer to violate the Servicing Standard. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi18(b)(x) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Non- Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related securitization of the planned sale and such Non-Directing Holder’s opportunity to submit an offer on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, o
Appears in 3 contracts
Sources: Co Lender Agreement (BBCMS Mortgage Trust 2024-5c31), Co Lender Agreement (BMO 2024-5c8 Mortgage Trust), Co Lender Agreement (BMO 2024-5c7 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, ,
(1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi18(b)(x) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Non- Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day business day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related securitization of the planned sale and such Non-Directing Holder’s opportunity to submit an offer on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or the failure to remit to the Master Servicer for deposit into the Collection Account or the related Loan Combination Custodial Account, as applicable, any amount required to be so remitte
Appears in 3 contracts
Sources: Co Lender Agreement (Benchmark 2022-B34 Mortgage Trust), Co Lender Agreement (Benchmark 2022-B33 Mortgage Trust), Co Lender Agreement (Benchmark 2022-B32 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 A-1-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi18(b)(x) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day business day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Non- Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related securitization of the planned sale and such Non-Directing Holder’s opportunity to submit an offer on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or the failure to remit to the Master Servicer for deposit into the Collection Account or the related Loan Combination Custodial Account, as applicable, any amount required to be so rem
Appears in 2 contracts
Sources: Co Lender Agreement (3650R 2021-Pf1 Commercial Mortgage Trust), Co Lender Agreement (Benchmark 2021-B28 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial Note A-2 is not in a securitization, the Note A-2 Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of its Note(s) Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing its Note(s) the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder Entity holding the New A-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Note A-1 PSA and the applicable master servicer of such Securitization) Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of Note(s)Note A-2, (2) if a Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Each Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and Trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that party is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided such party is not also a party to the Note A-2 PSA).
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within two Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect Trustee, to such the Non-Lead Note, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related each master servicer under a Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Noteon a monthly basis;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subany Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10-K, Form 10-D and 10D, Form 8-K), and (ii) upon request, any other materials specified in each of the related other Servicing Agreements as the parties to each Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required may require in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its their obligations under the Securities ActAct of 1933, the as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB AB, and Form SF-3 and (2) any other applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without law. Without limiting the generality of the foregoing (x) the foregoing, each Lead Depositor or the related Note Holder for a Lead Securitization shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days to the depositor and the Trustee for any prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, Securitization a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special each Lead Servicer (or any replacement Master Servicer or Special Servicer, as applicableat the expense of the Lead Note Holder) shallwill be required, upon reasonable prior written request, and subject to provide to the right of depositor and the Master Servicer or the Special Servicer, as the case may be, Trustee for any prior Securitization any other information required to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained comply in a Lead Securitization timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), for inclusion in and with respect to the disclosure materials (orLead Servicers, in the case of a replacement Special Servicerupon prior written request, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the related Non-Lead SecuritizationServicing Agreements;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with Agreement shall include the duty to service each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations Note on behalf of the related Trustees and coordination) to the same extent as such party is required to cooperate related Certificate holders in accordance with the Lead Depositor under Article X (or any article substantially similar thereto) terms and provisions of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing this Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xivii) any late collections received by the Master Servicer from the Borrower that are allocable to for which a P&I Advance has already been paid by a master servicer or trustee under a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee Servicing Agreement shall be remitted by the Master Servicer to such master servicer or trustee under a Non-Lead Master Servicer Servicing Agreement, as applicable, within one (1) Business Day of receipt and identification thereofof properly identified funds; 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 later collections to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an Holders are intended third-party beneficiary beneficiaries in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;; and
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide not.
Appears in 2 contracts
Sources: Co Lender Agreement (CFCRE 2016-C4 Mortgage Trust), Co Lender Agreement (CFCRE 2016-C3 Mortgage Trust)
Provisions Relating to Securitization. (a) New Notes. For so long as an Initial a Note is not included in a Securitization, the Holder or its Affiliate of such Note (an the “Initial Note Holder EntityResizing Holder”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes (“Amended Notes”) or additional notes (in either case “New Notes”) reallocating the principal of its Note(sthe Note or Notes that it owns (but in no case any Note that it does not then own) among Amended Notes and New Notes or severing its Note(s) a Note into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)the Note or Notes being amended or created, provided that (i) the aggregate principal balance of the Amended Notes and New Notes following such amendments is no greater than the principal balance of the related original Note(s) Amended Notes and New Notes prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) Amended Note of which it was a part prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis with the Amended Notes and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Resizing Holder Entity holding the New Notes shall notify the each other Holders (orHolder, for as applicable, and, if any other Note that has been contributed to included in a Securitizationsecuritization, to the trustee and the parties under each applicable master servicer of such Securitization) PSA, in writing (which may be by email) of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)a Note, (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1Note, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes and (4) if Note A-1-1 is severed into “component” notes, another note (or one of the New Notes) may be substituted for Note A-1-1 in the definition of “Directing Holder” and the definitions of “Lead Note” and “Lead Securitization” and “Non-Directing Holders” will be revised accordingly. Neither Rating Agency Confirmation nor approval of the Directing Holder shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph Section 18(a). The Resizing Holder whose Note is being reallocated or split pursuant to this Section 18(a) shall reimburse the other Holders for all costs and expenses incurred by the other Holder in connection with the reallocation or split.
(b) The Each Non-Lead Note Holder agrees that (unless the Non-Lead Note and the Lead Note are included in the same Securitization) it shall cause the Non-Lead Securitization Servicing Agreement Agreements to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):follows:
(i) the Master Servicer applicable master servicer or Trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and Trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) in the Master Servicer shall remit all payments received with respect to any event such Non-Lead Note, net Note Holder is responsible for its proportionate share of the Servicing Fees any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and Special Servicing Fees payable advance interest thereon) or other fee or expense pursuant to the Master Servicer Section 17 and Special Servicer, as applicable, funds received with respect to such Non-Lead NoteNote are insufficient to cover such amounts, and any other applicable fees and reimbursements payable (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreements and (y) if the Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreements will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreements;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreements will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreements;
(v) each of the Trustee and the master servicer under the Non-Lead Servicing Agreements, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreements with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead NoteNote by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreements with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note Holder by the applicable Master Special Servicer Remittance Date for (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;and
(ivvi) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer Trust shall each be a third-third party beneficiary beneficiaries of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notforegoing provisions.
Appears in 2 contracts
Sources: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2019-C53), Co Lender Agreement (UBS Commercial Mortgage Trust 2019-C17)
Provisions Relating to Securitization. (a) For so long as an Initial The Note A-2 Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New A-2 Notes”) reallocating the principal of its Note(s) Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing its Note(s) the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same weighted average interest rate as the original Note(s) Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity entity holding the New A-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Servicing Agreement and the applicable master servicer of such Securitization) Non-Lead Servicing Agreement in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all either of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)Note A-2, (2) if a Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes; provided, however, that for the avoidance of doubt, no such amendment to the Mortgage Loan Documents and this Agreement may require the Master Servicer to violate the Servicing Standard. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(aSection 21(a).
(b) . The Lead Holder whose Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) the Master Servicer is being reallocated or Trustee shall be required to provide written notice to each Non-Lead Master Servicer and each Non-Lead Trustee of any P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) split pursuant to this Section 21(a) shall reimburse the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date other Holder for the Non-Lead Note;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) the other Holder in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (reallocation or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notsplit.
Appears in 2 contracts
Sources: Co Lender Agreement (BMO 2024-5c5 Mortgage Trust), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2024-5c1)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi18(b)(x) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged PropertyProperties, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day business day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related securitization of the planned sale and such Non-Directing Holder’s opportunity to submit an offer on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or the failure to remit to the Master Servicer for deposit into the Collection Account or the related Loan Combination Custodial Account, as applicable, any amount required to be so remitted by the Special Ser
Appears in 2 contracts
Sources: Co Lender Agreement (Benchmark 2022-B32 Mortgage Trust), Co Lender Agreement (Benchmark 2021-B31 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New NotesNotes ), provided the parties hereto agree and acknowledge that a modification or amendment to this Agreement shall not be required in connection with the exercise of any rights under this Section 18(a). For the avoidance of doubt, Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph Section 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide nott
Appears in 2 contracts
Sources: Co Lender Agreement (Benchmark 2025-B41 Mortgage Trust), Co Lender Agreement (BBCMS Mortgage Trust 2025-C35)
Provisions Relating to Securitization. (a) For so long as an any Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(srelated Note (for purposes of this Section 18(a), the “Subject Note”, then such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) the Subject Note among the New Notes; reducing the Mortgage Interest Rates of such New Notes or severing its Note(s) the Subject Note into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)the Subject Note, provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) Subject Note prior to such amendments, (ii) all New Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Subject Note prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for if any such other Note that has been contributed to shall have included in a Securitization, then it shall notify the parties to the trustee and the applicable master servicer of PSA governing such Securitizationother Note) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, any reduction of Mortgage Interest Rates or such severing of Note(s)the Subject Note, (2) if a the Subject Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Subject Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph Section 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer, the Special Servicer or the Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance Servicing Advance, with respect to the Mortgage Loan, if made, or any outstanding P&I Advance with respect to the Lead Note or Property Advance Servicing Advance, with respect to the Mortgage Loan previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer, the Special Servicer or the Trustee, as applicable, shall provide each the Non-Lead Master Servicer or Non-Lead Special Servicer, as applicable, for each Non-Lead Securitization written notice of such determination promptly after within two (2) Business Days of the date of 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 nonrecoverabilitydetermination;
(iii) the Master Servicer shall remit all payments received with respect to any each Non-Lead Note, net of the Servicing Fees and Special Servicing Fees any portion thereof that is payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable or reimbursable to the Master Servicer, the Special Servicer and or the Trustee with respect to such Non-Lead NoteTrustee, to the related each Non-Lead Note Holder by the applicable Master Servicer Serviced Whole Loan Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, on each Serviced Whole Loan Remittance Date the Master Servicer agrees to shall deliver or cause to be delivered or make available in electronic format acceptable to the related Non-Lead Master Servicer (A) all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include including all loan-level reports constituting from the CREFC® Investor Reporting Package (IRP)Package) required to be delivered pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, and (B) all quarterly and annual operating statements, financial statements, budgets, rent rolls and sales reports of the related Mortgaged Property, such Non-Lead Notethe quarterly and annual financial statements of the related borrower, and any other reports or documents required to be delivered under the Master Servicer, terms of the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Noterelated Mortgage Loan Documents;
(viv) the Master Servicer and Special Servicerany notice, as applicablereport, shall provide assessment, attestation, statement, certificate and/or information furnished or required to be furnished pursuant to Article XI (or any article substantially similar thereto relating to Exchange Act reporting and filing) of the Special Servicer Lead Securitization Servicing Agreement shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) also be provided to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls Depositor and other information regarding the Mortgage Loan provided by it to any other party each Non-Lead Certificate Administrator (to the extent such item and/or information relates to a Non-Lead Securitization Servicing Agreement at the time provided to such other partyNote or a party that services, specially services or is a trustee or custodian for a Non-Lead Note);
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Custodian, the Operating Advisor, any primary servicer Advisor and the Custodian Asset Representations Reviewer shall be required to (indemnify and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify hold harmless each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act party (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause Person who signs a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification for any public Other Securitization that includes a Non-Lead Note as well as the entity for which such Person acts as an officer, and such entity’s officers, directors and affiliates) from and against any claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and other costs and expenses incurred by such certification party arising out of (i) an actual breach by the Master Servicer, the Special Servicer, the Trustee, the Operating Advisor, the Asset Representations Reviewer, the Custodian or the Certificate Administrator, as the case may be, of its obligations under Article XI (or any article substantially similar thereto relating to Exchange Act reporting and filing) of the Lead Securitization Servicing Agreement, (ii) negligence, bad faith or willful misconduct on the part of the Master Servicer, the Special Servicer, the Trustee, the Asset Representations Reviewer, the Operating Advisor, the Custodian or the Certificate Administrator in the performance of such obligations, or (iii) delivery of any Deficient Exchange Act Deliverable by, or on behalf of, such party;
(viii) each of the Trustee, the Certificate Administrator, the Master Servicer and the Special Servicer understands that information about itself may be included in the offering material related to a Non-Lead Securitization and agrees to (a) negotiate in good faith an agreement (subject to such party receiving reasonable advance notice and being paid for reasonable out-of-pocket expenses) to indemnify and hold any related Non-Lead Depositor and underwriters involved in the offering of the related commercial mortgage pass through certificates harmless for any costs, liabilities, fees and expenses incurred by such Non-Lead Depositor or such underwriters as a result of any material misstatements or omissions or alleged material misstatements or omissions in any such offering material to the extent that such material misstatement or omission was made in reliance upon any such information provided by the Trustee, the Certificate Administrator, the Master Servicer or the Special Servicer, as applicable, to such Non-Lead Depositor, underwriters or mortgage loan seller and (b) deliver such securities law opinion(s) of counsel, certifications and/or indemnification agreement(s) (to the extent the cost thereof is paid by the applicable Non-Lead Note Holder) with respect to such information that are substantially similar to those delivered with respect to the offering material for the Lead Securitization by the Master Servicer, the Special Servicer, Trustee or Certificate Administrator, as the case may be, or their respective counsel, in connection with the information concerning such party in the offering material related to a Non-Lead Securitization;
(ix) the Master Servicer, the Special Servicer, the Trustee, the Operating Advisor and the Certificate Administrator shall (i) with respect to any Initial Sub-Servicer engaged by the Master Servicer, the Special Servicer, Trustee or Certificate Administrator that is a Servicing Function Participant or Additional Servicer, use commercially reasonable efforts to cause such party to, and (ii) with respect to each other Additional Servicer and each Servicing Function Participant with which, in each case, it has entered into a servicing relationship with respect to the Mortgage Loans, cause such party to, in each case, indemnify and hold harmless each certification party (including each Person who signs a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification for any public Other Securitization that includes a Non-Lead Note as well as the entity for which such Person acts as an officer, and such entity’s officers, directors and affiliates) from and against any and all claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and any other costs, fees and expenses incurred by such certification party arising out of (a) a breach of its obligations to provide any of the annual compliance statements or annual assessment of compliance with the servicing criteria or attestation reports pursuant to the applicable sub-servicing or primary servicing agreement, (b) negligence, bad faith or willful misconduct on its part in the performance of such obligations, (c) any failure by it, as a servicer to identify a Servicing Function Participant pursuant to Lead Securitization Servicing Agreement, or (d) delivery of any Deficient Exchange Act Deliverable;
(x) each of the Trustee, the Certificate Administrator, the Master Servicer and the Special Servicer shall, and each of the Master Servicer and the Special Servicer shall use commercially reasonable efforts to cause any Servicing Function Participant appointed thereby with respect to the Mortgage Loan to, cooperate with the Non-Lead Depositor, Non-Lead Trustee, Non-Lead Certificate Administrator, Non-Lead Master Servicer and Non-Lead Special Servicer in preparing each Form 10 D, Form ABS-EE, Form 8-K and Form 10 K required to be filed by such Non-Lead Securitization and shall provide (within such time periods as would enable the Non-Lead Securitization and the Non-Lead Depositor to timely comply with its Exchange Act and Securities Act reporting requirements) to such Non-Lead Depositor, Non-Lead Trustee, Non-Lead Certificate Administrator and Non-Lead Master Servicer for such Non-Lead Securitization such information as may be reasonably necessary for the Non-Lead Depositor, Non-Lead Trustee, Non-Lead Certificate Administrator and Non-Lead Master Servicer to timely comply with the reporting requirements of Regulation AB and the Exchange Act;
(xi) each of the Trustee, the Certificate Administrator, the Custodian, the Master Servicer and the Special Servicer shall, and each of the Master Servicer and the Special Servicer shall use commercially reasonable efforts to cause any Servicing Function Participant appointed thereby with respect to the Mortgage Loan to, provide, with respect to itself, to the Non-Lead Depositor, Non-Lead Trustee or Non-Lead Certificate Administrator, as applicable, (i) a report on an assessment of compliance with the servicing criteria to the extent required pursuant to Item 1122(a) of Regulation AB, (ii) a registered accounting firm’s attestation report on such Person’s assessment of compliance with the applicable servicing criteria to the extent required pursuant to Item 1122(b) of Regulation AB; (iii) such other information as may be required pursuant to Item 1122(c) of Regulation AB and (iv) a servicer compliance statement signed by an authorized officer of such Person that satisfies the requirements of Item 1123 of Regulation AB;
(xii) each of the Master Servicer, the Special Servicer, the Custodian Operating Advisor, the Asset Representations Reviewer, the Custodian, the Certificate Administrator and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), ) with the Lead Depositor and each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with necessary for the Lead Depositor under Article X (or such Non-Lead Depositor, as applicable, to conduct any article substantially similar thereto) reasonable due diligence necessary to evaluate and assess any material instances of non-compliance disclosed in any of the Lead Securitization Servicing Agreement deliverables required by the applicable reporting requirements under the Securities Act, the Exchange Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and in connection with Deficient Exchange Act Deliverablesthe rules and regulations promulgated thereunder. All respective reasonable out-of-pocket costs and expenses incurred by the Lead Depositor or any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositorthe Lead Depositor or any Non-Lead Depositor, as the case may be) in connection with the foregoing (other than those costs and expenses related required to participation by such be at the Lead Depositor’s or any Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Depositor’s expense under Article X XI (or any article substantially similar theretothereto relating to Exchange Act reporting and filing) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the United States Securities and Exchange Commission therewith (the “Commission”) or its staff related thereto shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such the Lead Depositor or any Non-Lead Depositor, as the case may be;
(xixiii) any late collections received by in the event the Master Servicer from the Borrower has received written notice that are allocable to a Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee has made an advance of a monthly debt service payment on a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by and the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent 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 subsequently receives late collections to in respect of such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any eventadvanced payment, the Master Servicer shall remit such amounts to the applicable Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee, within two (2) Business Days of following receipt of such late collections in properly identified funds, the amount allocable to such Non-Lead Note in accordance with the terms of this Agreement and the Lead Securitization Servicing Agreement;
(xiixiv) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixv) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or -39- indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advancesreimbursement or advances;
(xivxvi) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Note Holder;
(xvii) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xviii) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respe
Appears in 2 contracts
Sources: Co Lender Agreement, Co Lender Agreement
Provisions Relating to Securitization. (a) For so long as an Initial Note A-2 is not in a securitization, the Note A-2 Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of its Note(s) Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing its Note(s) the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder Entity holding the New A-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Note A-1 PSA and the applicable master servicer of such Securitization) Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of Note(s)Note A-2, (2) if a Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Each Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and Trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of event such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect responsible for its proportionate share of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights any Nonrecoverable Advances (or any other portion of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notNonrecoverable
Appears in 2 contracts
Sources: Co Lender Agreement (CFCRE 2016-C3 Mortgage Trust), Co Lender Agreement (COMM 2015-Lc23 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial Note any Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner holder of its Note(s)a Note that is not included in a Securitization, such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes (“Amended Notes”) or create additional notes (in either case “New Notes”) reallocating the principal of its Note(ssuch Note or Notes that it owns (but not any Note that it does not then own) among Amended Notes and New Notes or severing its Note(s) servicing a Note or Notes into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)the Notes, Amended Notes or New Notes, as applicable, provided that (i) the aggregate principal balance of the Amended Notes or New Notes Notes, as applicable, following such amendments is no greater than the principal balance of the related original Note(s) such Note or Notes prior to such amendments, (ii) all New Notes or Amended Notes, as applicable, continue to have the same weighted average or a lower interest rate as the original Note(s) such Note or Notes prior to such amendments, (iii) all New Notes or Amended Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes or Amended Notes, as applicable, shall notify the other Note Holders (or, for if any such other Note that has been contributed to shall have included in a Securitization, then it shall notify the parties to the trustee and the applicable master servicer of PSA governing such Securitizationother Note) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, any reduction of Mortgage Interest Rates or such severing of Note(s)a Note, (2) if a any Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1Note, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes, and (4) if the Lead Note is severed into “component” notes, another note (or one of the New Notes) may be substituted for Note A-1 in the definition of “Directing Holder”, “First Securitization” and “Lead Note”. Neither Rating Agency Confirmation nor approval of the Directing Holder shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any each Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such each Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related each Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the such Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or to make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the such Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related any Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any each Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related any Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related such Non-Lead Depositor or the related such Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)) or its obligations with respect to any Deficient Exchange Act Deliverable, (b) without limiting the generality of the foregoing (x) the applicable Depositor for the Lead Depositor Securitization or the related Holder shall provide or cause to be provided to any related each Non-Lead Depositor and any each Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day business day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any a Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related applicable Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in or a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in or a Form 8-K) K relating to any securitization of the related a Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related applicable Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any each Non-Lead Depositor and the related each Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such each Non-Lead Depositor and the related each Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a each Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such the applicable Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each Non-Lead Master Servicer will be entitled to enforce the rights of such the related Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the related Non-Directing Holder of the planned sale and such Non-Directing Holder’s opportunity to submit an offer on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or the failure to remit to the Master Servicer for deposit into the Collection Account or the related Loan Combination Custodial Account, as applicable, any amount required to be so remitted by the Special Servicer within one (1) Business Day after the date such remittance was to
Appears in 2 contracts
Sources: Co Lender Agreement (GS Mortgage Securities Trust 2017-Gs6), Co Lender Agreement (Citigroup Commercial Mortgage Trust 2017-P7)
Provisions Relating to Securitization. (a) New Notes. For so long as DBAG or an Initial Note Holder Affiliate of DBAG or its GACC or an Affiliate of GACC (an “Initial Note Holder EntityHolder”) is the owner of its Note(s)any Notes, such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes (“Amended Notes”) or additional notes (in either case “New Notes”) reallocating the principal of its Note(sthe Note or Notes that it owns (but in no case any Note that it does not then own) among Amended Notes and New Notes or severing its Note(s) a Note into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)the Note or Notes being amended or created, provided that (i) the aggregate principal balance of the Amended Notes and New Notes following such amendments is no greater than the principal balance of the related original Note(s) Amended Notes and New Notes prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) Amended Note of which it was a part prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis with the Amended Notes and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the each other Holders (orHolder, for as applicable, and, if any other Note that has been contributed to included in a Securitizationsecuritization, to the trustee and the parties under each applicable master servicer of such Securitization) PSA, in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)a Note, (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph Section 18(a). The Initial Note Holder whose Note is being reallocated or split pursuant to this Section 18(a) shall reimburse the other Holders for all costs and expenses incurred by the other Holders in connection with the reallocation or split.
(b) The Each Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and Trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17 and funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Lead Securitization PSA shall:
(i) provide that the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) provide that if the Master Servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within two Business Days 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 nonrecoverabilitymade;
(iii) provide that the Master Servicer shall remit all payments received (or advanced) with respect to any Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect Trustee, to such the Non-Lead Note, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports provide that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related each master servicer under a Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Noteon a monthly basis;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subany Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10-K, Form 10-D and 10D, Form 8-K), and (ii) upon request, any other materials specified in each of the related other Servicing Agreements as the parties to each Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required may require in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its their obligations under the Securities ActAct of 1933, the as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB AB, and Form SF-3 and (2) any other applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without law. Without limiting the generality of the foregoing (x) the foregoing, each Lead Depositor or the related Note Holder for a Lead Securitization shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days to the depositor and the Trustee for any prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, Securitization a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special each Lead Servicer (or any replacement Master Servicer or Special Servicer, as applicableat the expense of the Lead Note Holder) shallwill be required, upon reasonable prior written request, and subject to provide to the right of depositor and the Master Servicer or the Special Servicer, as the case may be, Trustee for any prior Securitization any other information required to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained comply in a Lead Securitization timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), for inclusion in and with respect to the disclosure materials (orLead Servicers, in the case of a replacement Special Servicerupon prior written request, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the related Non-Lead SecuritizationServicing Agreements;
(xvi) provide that the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with Agreement shall include the duty to service each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations Note on behalf of the related Trustees and coordination) to the same extent as such party is required to cooperate related Certificate holders in accordance with the Lead Depositor under Article X terms and provisions of this Agreement;
(or any article substantially similar theretovii) of the Lead Securitization Servicing Agreement and in connection provide that, with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any respect to any/each Non-Lead Depositor (including reasonable legal fees Note, the Master Servicer shall withdraw from the related Collection Account and expenses remit to the Holder of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer Note, within one (1) Business Day of receipt and identification thereofof properly identified funds, any amounts that represent late collections or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to any third party in accordance with this Agreement), unless such amount would otherwise be included in the monthly remittance to the Holder of such Non-Lead Note for such month; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late later collections to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each provide that the Non-Lead Note Holder is an Holders are intended third-party beneficiary beneficiaries in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) provide that each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivx) if provide that it shall not be amended in a manner that materially and adversely affects the Mortgage Loan becomes a Defaulted Mortgage Loan and rights of the Special Servicer determines to sell the Non-Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right Holders without their consent; and
(xi) satisfy ▇▇▇▇▇’▇ rating methodology related to permitted investments and the obligation eligible accounts applicable to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notsecurities rated “Aaa” by ▇▇▇▇▇’▇.
Appears in 2 contracts
Sources: Co Lender Agreement (CD 2016-Cd1 Mortgage Trust), Co Lender Agreement (DBJPM 2016-C3 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial Note A-1 is not in a securitization, the Note A-1 Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-1 Notes”) reallocating the principal of its Note(s) Note A-1 among other New A-1 Notes; reducing the Interest Rates of such New A-1 Notes or severing its Note(s) the Note A-1 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1, provided that (i) the aggregate principal balance of the New A-1 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-1 prior to such amendments, (iii) all New A-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-1 Holder Entity holding the New A-1 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Note A-2 PSA and the applicable master servicer of such Securitization) Note A-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of Note(s)Note A-1, (2) if a Note A-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead For so long as Note A-2 is not in a securitization, the Note A-2 Holder agrees that it shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the parties to the Note A-1 PSA and the Note A-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-2, (2) if Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(c) Each Non-Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and Trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(d) The Note A-1 Holder shall give each of the parties to the Note A-2 PSA (that is not also a party to the Note A-1 PSA) notice of the Note A-1 Securitization in writing (which may be by email) prior to or promptly following the Note A-1 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-1 PSA and the identity of the Controlling Class Representative under such Note A-1 PSA. In addition, after the Note A-1 Securitization Date, the Note A-1 Holder shall send a copy of the Note A-1 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-3 PSA (provided such party is not also a party to the Note A-1 PSA).
(e) The Note A-2 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that party is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-3 PSA (provided such party is not also a party to the Note A-2 PSA).
(f) The Note A-1 PSA shall:
(i) provide that the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) provide that if the Master Servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within two Business Days 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 nonrecoverabilitymade;
(iii) provide that the Master Servicer shall remit all payments received (or advanced) with respect to any Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect Trustee, to such the Non-Lead Note, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports provide that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related each master servicer under a Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Noteon a monthly basis;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subany Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10-K, Form 10-D and 10D, Form 8-K), and (ii) upon request, any other materials specified in each of the related other Servicing Agreements as the parties to each Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required may require in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its their obligations under the Securities ActAct of 1933, the as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB AB, and Form SF-3 and (2) any other applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without law. Without limiting the generality of the foregoing (x) the foregoing, each Lead Depositor or the related Note Holder for a Lead Securitization shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days to the depositor and the Trustee for any prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, Securitization a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special each Lead Servicer (or any replacement Master Servicer or Special Servicer, as applicableat the expense of the Lead Note Holder) shallwill be required, upon reasonable prior written request, and subject to provide to the right of depositor and the Master Servicer or the Special Servicer, as the case may be, Trustee for any prior Securitization any other information required to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained comply in a Lead Securitization timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), for inclusion in and, with respect to the disclosure materials (orLead Servicers, in the case of a replacement Special Servicerupon prior written request, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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 time to time, in each case, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the related Non-Lead SecuritizationServicing Agreements;
(xvi) provide that the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with Agreement shall include the duty to service each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations Note on behalf of the related Trustees and coordination) to the same extent as such party is required to cooperate related Certificate holders in accordance with the Lead Depositor under Article X (or any article substantially similar thereto) terms and provisions of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing this Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xivii) provide that any late collections received by the Master Servicer from the Borrower that are allocable to for which a P&I Advance has already been paid by a master servicer or trustee under a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee Servicing Agreement shall be remitted by the Master Servicer to such master servicer or trustee under a Non-Lead Master Servicer Servicing Agreement, as applicable, within one (1) Business Day of receipt and identification thereofof properly identified funds; 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 later collections to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each provide that the Non-Lead Note Holder is an Holders are intended third-party beneficiary beneficiaries in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) provide that each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;; and
(xivx) if provide that it shall not be amended in a manner that materially and adversely affects the Mortgage Loan becomes a Defaulted Mortgage Loan and rights of the Special Servicer determines to sell the Non-Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right Holders without their consent.
(xi) satisfy ▇▇▇▇▇’▇ rating methodology related to permitted investments and the obligation eligible accounts applicable to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notsecurities rated “Aaa” by ▇▇▇▇▇’▇.
Appears in 2 contracts
Sources: Co Lender Agreement (CFCRE 2016-C4 Mortgage Trust), Co Lender Agreement (CFCRE 2016-C3 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial Note A-2 is not in a securitization, the Note A-2 Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of its Note(s) Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing its Note(s) the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder Entity holding the New A-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee and the applicable master servicer of such Securitization) Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of Note(s)Note A-2, (2) if a Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Each Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and Trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that party is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided such party is not also a party to the Note A-2 PSA).
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within two Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect Trustee, to such the Non-Lead Note, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related each master servicer under a Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Noteon a monthly basis;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subany Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10-K, Form 10-D and 10D, Form 8-K), and (ii) upon request, any other materials specified in each of the related other Servicing Agreements as the parties to each Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required may require in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its their obligations under the Securities ActAct of 1933, the as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB AB, and Form SF-3 and (2) any other applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without law. Without limiting the generality of the foregoing (x) the foregoing, each Lead Depositor or the related Note Holder for a Lead Securitization shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days to the depositor and the Trustee for any prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, Securitization a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special each Lead Servicer (or any replacement Master Servicer or Special Servicer, as applicableat the expense of the Lead Note Holder) shallwill be required, upon reasonable prior written request, and subject to provide to the right of depositor and the Master Servicer or the Special Servicer, as the case may be, Trustee for any prior Securitization any other information required to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained comply in a Lead Securitization timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), for inclusion in and, with respect to the disclosure materials (orLead Servicers, in the case of a replacement Special Servicerupon prior written request, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the related Non-Lead SecuritizationServicing Agreements;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with Agreement shall include the duty to service each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations Note on behalf of the related Trustees and coordination) to the same extent as such party is required to cooperate related Certificate holders in accordance with the Lead Depositor under Article X (or any article substantially similar thereto) terms and provisions of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing this Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xivii) any late collections received by the Master Servicer from the Borrower that are allocable to for which a P&I Advance has already been paid by a master servicer or Trustee under a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee Servicing Agreement shall be remitted by the Master Servicer to such master servicer or trustee under a Non-Lead Master Servicer Servicing Agreement, as applicable, within one (1) Business Day of receipt and identification thereofof properly identified funds; 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 later collections to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an Holders are intended third-party beneficiary beneficiaries in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;; and
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide not.
Appears in 2 contracts
Sources: Co Lender Agreement (CFCRE 2016-C4 Mortgage Trust), Co Lender Agreement (COMM 2016-Ccre28 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1A-2, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 A-2 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. ; provided, however, that for the avoidance of doubt, no such amendment to the Mortgage Loan Documents and this Agreement may require the Master Servicer to violate the Servicing Standard.. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi18(b)(x) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related securitization of the planned sale and such Non-Directing Holder’s opportunity to submit an offer on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, o
Appears in 2 contracts
Sources: Co Lender Agreement (BBCMS Mortgage Trust 2024-5c27), Co Lender Agreement (Benchmark 2024-V6 Mortgage Trust)
Provisions Relating to Securitization. (a) New Notes. For so long as an Initial a Note is not included in a Securitization, the Holder or its Affiliate of such Note (an the “Initial Note Holder EntityResizing Holder”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes (“Amended Notes”) or additional notes (in either case “New Notes”) reallocating the principal of its Note(sthe Note or Notes that it owns (but in no case any Note that it does not then own) among Amended Notes and New Notes or severing its Note(s) a Note into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)the Note or Notes being amended or created, provided that (i) the aggregate principal balance of the Amended Notes and New Notes following such amendments is no greater than the principal balance of the related original Note(s) Amended Notes and New Notes prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) Amended Note of which it was a part prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis with the Amended Notes and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Resizing Holder Entity holding the New Notes shall notify the each other Holders (orHolder, for as applicable, and, if any other Note that has been contributed to included in a Securitizationsecuritization, to the trustee and the parties under each applicable master servicer of such Securitization) PSA, in writing (which may be by email) of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)a Note, (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1Note, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes and (4) if the Lead Note is severed into “component” notes, another Note (or one of the New Notes) may be substituted for Note A-1 in the definition of “Directing Note” and the definitions of “Lead Note” and “Lead Securitization” and Non-Directing Holder” will be revised accordingly. Neither Rating Agency Confirmation nor approval of the Directing Holder shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph Section 18(a). The Resizing Holder whose Note is being reallocated or split pursuant to this Section 18(a) shall reimburse the other Holders for all costs and expenses incurred by the other Holders in connection with the reallocation or split.
(b) The Each Non-Lead Note Holder agrees that (if its Non-Lead Note is included in a Securitization other than the Lead Securitization) it shall cause the Non-Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):follows:
(i) the Master Servicer applicable master servicer or Trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and Trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) in the Master Servicer shall remit all payments received with respect to any event such Non-Lead Note, net Note Holder is responsible for its proportionate share of the Servicing Fees any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and Special Servicing Fees payable advance interest thereon) or other fee or expense pursuant to the Master Servicer Section 17 and Special Servicer, as applicable, funds received with respect to such Non-Lead NoteNote are insufficient to cover such amounts, and any other applicable fees and reimbursements payable (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, for such amounts out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead NoteNote by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note Holder by the applicable Master Special Servicer Remittance Date for (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;and
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other be third party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality beneficiaries of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notprovisions.
Appears in 2 contracts
Sources: Co Lender Agreement (Benchmark 2018-B3 Commercial Mortgage Trust), Co Lender Agreement (BENCHMARK 2018-B2 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as Citi or an Initial Note Holder or its Affiliate of Citi (an the “Initial Note Holder EntityA-1 Holder”) is the owner of its Note(s)Note A-1, such the Initial Note A-1 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-1 Notes”) reallocating the principal of its Note(s) Note A-1 among other New A-1 Notes; reducing the Mortgage Interest Rates of such New A-1 Notes or severing its Note(s) the Note A-1 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1, provided that (i) the aggregate principal balance of the New A-1 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-1 prior to such amendments, (iii) all New A-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-1 Holder Entity holding the New A-1 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Note A-2 PSA, the Note A-3 PSA and the applicable master servicer of such Securitization) Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, any reduction of Mortgage Interest Rates or such severing of Note(s)Note A-1, (2) if a Note A-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) For so long as Citi or an Affiliate of Citi (the “Initial Note A-2 Holder”) is the owner of Note A-2, the Initial Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of Note A-2 among other New A-2 Notes; reducing the Mortgage Interest Rates of such New A-2 Notes or severing the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the parties to the Note A-1 PSA, the Note A-3 PSA and the Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, any reduction of Mortgage Interest Rates or such severing of Note A-2, (2) if Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(b).
(c) For so long as Starwood or an Affiliate of Starwood (the “Initial Note A-3 Holder”) is the owner of Note A-3, the Initial Note A-3 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-3 Notes”) reallocating the principal of Note A-3 among other New A-3 Notes; reducing the Mortgage Interest Rates of such New A-3 Notes or severing the Note A-3 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-3, provided that (i) the aggregate principal balance of the New A-3 Notes following such amendments is no greater than the principal balance of Note A-3 prior to such amendments, (ii) all New A-3 Notes continue to have the same or a lower interest rate as the Note A-3 prior to such amendments, (iii) all New A-3 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-3 Holder holding the New A-3 Notes shall notify the parties to the Note A-1 PSA, the Note A-2 PSA and the Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, any reduction of Mortgage Interest Rates or such severing of Note A-3, (2) if Note A-3 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(c).
(d) For so long as Starwood or an Affiliate of Starwood (the “Initial Note A-4 Holder”) is the owner of Note A-4, the Initial Note A-4 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-4 Notes”) reallocating the principal of Note A-4 among other New A-4 Notes; reducing the Mortgage Interest Rates of such New A-4 Notes or severing the Note A-4 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-4, provided that (i) the aggregate principal balance of the New A-4 Notes following such amendments is no greater than the principal balance of Note A-4 prior to such amendments, (ii) all New A-4 Notes continue to have the same or a lower interest rate as the Note A-4 prior to such amendments, (iii) all New A-4 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-4 Holder holding the New A-4 Notes shall notify the parties to the Note A-1 PSA, the Note A-2 PSA and the Note A-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, any reduction of Mortgage Interest Rates or such severing of Note A-4, (2) if Note A-4 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-4 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(d).
(e) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi18(e)(x) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-15G, Form 10-K, Form 10-10- D and Form 8-K), and (ii) upon request, any other materials specified in the related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day business day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide not
Appears in 2 contracts
Sources: Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-P5), Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-C2)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi18(b)(x) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related securitization of the planned sale and such Non-Directing Holder’s opportunity to submit an offer on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for two (2) Business Days following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or the failure to remit to the Master Servicer for deposit into the Collection Account or the related Loan Combination Custodial Account, as applicable, any amount required to be so remitt
Appears in 2 contracts
Sources: Co Lender Agreement (Benchmark 2023-B38 Mortgage Trust), Co Lender Agreement (FIVE 2023-V1 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an any Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(srelated Note (for purposes of this Section 18(a), the “Subject Note”, then such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) the Subject Note among the New Notes; reducing the Mortgage Interest Rates of such New Notes or severing its Note(s) the Subject Note into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)the Subject Note, provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) Subject Note prior to such amendments, (ii) all New Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Subject Note prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Note Holders (or, for if any such other Note that has been contributed to shall have included in a Securitization, then it shall notify the parties to the trustee and the applicable master servicer of PSA governing such Securitizationother Note) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, any reduction of Mortgage Interest Rates or such severing of Note(s)the Subject Note, (2) if a the Subject Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Subject Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph Section 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any each Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such each Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related each Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the such Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or to make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the such Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related any Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any each Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related any Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related such Non-Lead Depositor or the related such Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)) or its obligations with respect to any Deficient Exchange Act Deliverables, (b) without limiting the generality of the foregoing (x) the applicable Depositor for the Lead Depositor Securitization or the related Holder shall provide or cause to be provided to any related each Non-Lead Depositor and any each Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day business day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇E▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any a Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related applicable Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in or a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in or a Form 8-K) K relating to any securitization of the related a Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related applicable Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any each Non-Lead Depositor and the related each Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇E▇▇▇▇-compatible format to such each Non-Lead Depositor and the related each Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a each Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such the applicable Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Note Holder;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or the failure to remit to the Master Servicer for deposit into the Collection Account or the related Loan Combination Custodial Account, as applicable, any amount required to be so remitted by the Special Servicer within one (1) Business Day after the date such remittance was to be made; (iii) the qualification, downgrade or withdrawal, or placing on “watch status” in contemplation of a rating downgrade or withdrawal of the ratings of any class of certificates issued in connection with any Non-Lead Securitization by the rating agencies rating such securities (and such qualification, downgrade, withdrawal or “watch status” placement shall not have been withdrawn by such rating agencies within sixty (60) days of actual knowledge of such event by the Master Servicer or the Special Servicer, as the case may be), and publicly citing servicing concerns with the Master Servicer or Special Servicer, as applicable, as the sole or a material factor in such rating action; and (iv) the failure to pro
Appears in 2 contracts
Sources: Co Lender Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2017-C33), Co Lender Agreement (Bank 2017-Bnk4)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi18(b)(x) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day business day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related securitization of the planned sale and such Non-Directing Holder’s opportunity to submit an offer on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or the failure to remit to the Master Servicer for deposit into the Collection Account or the related Loan Combination Custodial Account, as applicable, any amount required to be so remitted
Appears in 2 contracts
Sources: Co Lender Agreement (Morgan Stanley Capital I Trust 2021-L5), Co Lender Agreement (GS Mortgage Securities Trust 2020-Gsa2)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1A-2, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 A-2 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a). Pursuant to this Section 18(a), GACC, as the holder of Note A-1-1 and Note A-1-2 following the amendment of the Original Note A-1, confirms the continuing applicability of this Agreement to Note A-1-1 and Note A-1-2 following the amendment of the Original Note A-1, as so modified. Further, GACC certifies as to each of the following: (i) the aggregate principal balance of Note A-1-1 and Note A-1-2 following the amendment of the Original Note A-1 is no greater than the principal of the Original Note A-1 prior to such amendment, (ii) Note A-1-1 and Note A-1-2 continue to have the same weighted average interest rate as the Original Note A-1 prior to such amendment, (iii) Note A-1-1 and Note A-1-2 pay pro rata and on a pari passu basis and Note A-1-1 and Note A-1-2 are automatically subject to the terms of this Agreement, and (iv) GACC shall notify the trustee and the applicable master servicer relating to the Securitization of Note A-2, Note A-3 and Note A-4 in writing of such modified allocations and principal amounts of Note A-1-1 and Note A-1-2 on the date hereof.
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi18(b)(x) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related securitization of the planned sale and such Non-Directing Holder’s opportunity to submit an offer on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent relate
Appears in 2 contracts
Sources: Co Lender Agreement (BBCMS Mortgage Trust 2023-C19), Co Lender Agreement (Benchmark 2023-B38 Mortgage Trust)
Provisions Relating to Securitization. (a) New Notes. For so long as an Initial a Note is not included in a Securitization, the Holder or its Affiliate of such Note (an the “Initial Note Holder EntityResizing Holder”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes (“Amended Notes”) or additional notes (in either case “New Notes”) reallocating the principal of its Note(sthe Note or Notes that it owns (but in no case any Note that it does not then own) among Amended Notes and New Notes or severing its Note(s) a Note into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)the Note or Notes being amended or created, provided that (i) the aggregate principal balance of the Amended Notes and New Notes following such amendments is no greater than the principal balance of the related original Note(s) Amended Notes and New Notes prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) Amended Note of which it was a part prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis with the Amended Notes and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Resizing Holder Entity holding the New Notes shall notify the each other Holders (orHolder, for as applicable, and, if any other Note that has been contributed to included in a Securitizationsecuritization, to the trustee and the parties under each applicable master servicer of such Securitization) PSA, in writing (which may be by email) of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)a Note, (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1Note, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes and (4) if Note A-1 is severed into “component” notes, another note (or one of the New Notes) may be substituted for Note A-1 in the definition of “Designated Holder” and “Directing Holder” and the definitions of “Lead Note” and “Lead Securitization” and “Non-Directing Holder” will be revised accordingly. Neither Rating Agency Confirmation nor approval of the Directing Holder shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph Section 18(a). The Resizing Holder whose Note is being reallocated or split pursuant to this Section 18(a) shall reimburse the other Holders for all costs and expenses incurred by the other Holders in connection with the reallocation or split.
(b) The Each Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and Trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) in the Master Servicer shall remit all payments received with respect to any event such Non-Lead NoteNote Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, funds received with respect to such Non-Lead NoteNote are insufficient to cover such amounts, and any other applicable fees and reimbursements payable (x) the related master servicer will be required (to the extent of the related Non-Lead Note Holder’s proportionate share) to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required (to the extent of the related Non-Lead Note Holder’s proportionate share) to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party and to the extent of the related Non-Lead Note Holder’s proportionate share) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse (to the extent of the related Non-Lead Note Holder’s proportionate share) the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be (to the extent of the related Non-Lead Note Holder’s proportionate share) a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead NoteNote by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be (to the extent of the related Non-Lead Note Holder Holder’s proportionate share) a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the applicable Master Special Servicer Remittance Date for (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;and
(ivvi) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer Trust shall each be a third-third party beneficiary beneficiaries of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notforegoing provisions.
Appears in 2 contracts
Sources: Co Lender Agreement (Morgan Stanley Capital I Trust 2019-H6), Co Lender Agreement (CF 2019-Cf1 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial The Note A-1 Holder or its Affiliate (an “Initial and the Note A-2 Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New Notes”) reallocating the principal of its Note(s) Note A-1 or Note A-2 among other New Notes; reducing the Interest Rates of such New Notes or severing its Note(s) the Note A-1 or A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1 or A-2, as applicable, provided that (i) the aggregate principal balance of the New Notes and following such amendments is no greater than the principal balance of the related respective original Note(s) Note prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the respective original Note(s) Note prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Servicing Agreement and the applicable master servicer of such Securitization) Non-Lead Servicing Agreement in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all either of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)Note A-1 or Note A-2, (2) if a Note A-1 or Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(aSection 21(a). The Holder whose Note is being reallocated or split pursuant to this Section 21(a) shall reimburse the other Holder for all costs and expenses incurred by the other Holder in connection with the reallocation or split.
(b) The Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer or Trustee applicable master servicer and trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event the Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 20, and funds received with respect to the Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Lead Trustee to pay itself from the Lead Securitization Trust’s general account then the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Lead Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Lead Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to the Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to the Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall provide the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) (provided such party is not also a party to the Note A-1 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) provided such party is not also a party to the Note A-1 PSA.
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any the Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related master servicer under the Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to on a monthly basis on the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the applicable Master Servicer Remittance Date for the Non-Lead NoteDate;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subthe Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other Servicing Agreements as the parties to the Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other -29- applicable law. Without limiting the generality of the foregoing, the Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the trustee for any prior Securitization a copy of the Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, Form 10-D and any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and (ii) upon request, any other materials specified in the related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee with respect to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shallServicers, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable ▇the S▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the Non-Lead SecuritizationServicing Agreement;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Agreement shall include the duty to service the Non-Lead Depositor Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(including, without limitation, providing all due diligence information, reports, written responses, negotiations vii) the Master Servicer shall withdraw from the related Collection Account and coordination) remit to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) Holder of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor Note, within two (including reasonable legal fees and expenses 2) Business Days of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) properly identified funds, any amounts that represent late collections received by the Master Servicer from the Borrower that are allocable to a or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall any third party in accordance with this Agreement), unless such amount would otherwise be remitted by included in the Master Servicer monthly remittance to the Holder of such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereofNote for such month; 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 prepayments to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(x) it shall not be amended in a manner that materially and adversely affects the rights of the Non-Lead Note Holder without their consent; and
(xi) satisfy M▇▇▇▇’▇ rating methodology as of the closing date of the Lead Securitization related to permitted investments and eligible accounts applicable to securities rated “Aaa” by M▇▇▇▇’▇;
(xii) in connection with (A) any amendment of the Servicing Agreement, a party to such Servicing Agreement is required to provide a copy of the executed amendment to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement (which may be by e-mail), together with a copy of such amendment in electronic format, no later than the effective date of such amendment, and (B) the termination, resignation and/or replacement of the Master Servicer or Special Servicer under the Servicing Agreement, the replacement “master servicer” or replacement “special servicer”, as applicable, is required to provide to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof;
(xiii) “servicer termination events” (or any analogous term under the Servicing Agreement) include customary market termination events with respect to failure to make advances, failure to remit payments to the Non-Lead Note Holder as required, failure to deliver (or cause to be delivered) materials or information required in order for the Non-Lead Note Holder or the depositor under the Non-Lead Servicing Agreement to timely comply with its obligations under the Exchange Act, the Securities Act or Form SF-3, and for rating agency triggers with respect to any Certificates, subject to customary grace periods (provided that, in the case of failures related to the securities laws, such grace periods will not cause a depositor under the Non-Lead Servicing Agreement to fail to comply with the applicable provisions of such securities laws);
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Non-Lead Note in accordance with becomes the subject of an “asset review” under the Non-Lead Securitization Servicing Agreement, it the applicable parties to the Servicing Agreement are required to reasonably cooperate with the related asset representations reviewer or other applicable party to the Non-Lead Servicing Agreement in connection with such asset review, including with respect to providing access to related underlying documents to the extent the asset representations reviewer or such other applicable party to the Non-Lead Servicing Agreement has not obtained such documents from the Non-Lead Note Holder and such documents are in the possession of the applicable party to the Servicing Agreement; and
(xv) shall have provisions materially consistent with those set forth in market-standard CMBS servicing agreements with respect to:
(1) servicing transfer events that would result in the right and the obligation to sell all transfer of the Notes as notes evidencing one whole loan in accordance with Mortgage Loan to special servicing status;
(2) the terms authority of the Lead servicers in the Note A-2 Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notto grant or agree or consent to materia
Appears in 2 contracts
Sources: Co Lender Agreement (BBCMS Mortgage Trust 2020-C7), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2020-C55)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi18(b)(x) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related securitization of the planned sale and such Non-Directing Holder’s opportunity to submit an offer on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or the failure to remit to the Master Servicer for deposit into the Collection Account or the related Loan Combination Custodial Account, as applicable, any amount required to be so remitte
Appears in 2 contracts
Sources: Co Lender Agreement (BBCMS Mortgage Trust 2024-5c25), Co Lender Agreement (Benchmark 2024-V6 Mortgage Trust)
Provisions Relating to Securitization. (a)
(a) For so long as BSP or an Initial Note Holder or its Affiliate of BSP (an “Initial Note Holder EntityA-1 Holder”) is the owner of its Note(s)Note A-1, such Initial Note A-1 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New A-1 Notes”) reallocating the principal of its Note(s) Note A-1 among other New A-1 Notes; reducing the Interest Rates of such New A-1 Notes or severing its Note(s) the Note A-1 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1, provided that (i) the aggregate principal balance of the New A-1 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same weighted average interest rate as the original Note(s) Note A-1 prior to such amendments, (iii) all New A-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity entity holding the New A-1 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee and the applicable master servicer of such Securitization) Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all either of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)Note A-1, (2) if a Note A-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(aSection 21(a). The Initial Note A-1 Holder whose Note is being reallocated or split pursuant to this Section 21(a) shall reimburse the other Holder for all costs and expenses incurred by the other Holder in connection with the reallocation or split. If a New A-1 Note is created out of the Lead Note the Initial Note A-1 Holder shall designate which Note will be the Lead Securitization Note hereunder.
(b) The Non-Lead Note Holder agrees that (if the Non-Lead Note is included in a Securitization other than the Lead Securitization) it shall cause the Non-Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):follows:
(i) the Master Servicer or Trustee applicable master servicer and trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event the Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 20, and funds received with respect to the Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Lead Trustee to pay itself from the Lead Securitization Trust’s general account then the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Lead Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Lead Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to the Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to the Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-1 Holder shall provide the Depositor, the Servicer and the Special Servicer under the Note A-2 PSA (as of the Note A-1 Securitization Date) (provided such party is not also a party to the Note A-1 PSA) notice of the Note A-1 Securitization in writing (which may be by email) prior to or promptly following the Note A-1 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-1 PSA and the identity of the Controlling Class Representative under such Note A-1 PSA. In addition, after the Note A-1 Securitization Date, the Note A-1 Holder shall send a copy of the Note A-1 PSA to the Depositor, the Servicer and the Special Servicer under the Note A-2 PSA (as of the Note A-1 Securitization Date) provided such party is not also a party to the Note A-2 PSA.
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any the Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related master servicer under the Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to on a monthly basis on the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the applicable Master Servicer Remittance Date for the Non-Lead NoteDate;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subthe Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other Servicing Agreements as the parties to the Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, the Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the trustee for any prior Securitization a copy of the Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, Form 10-D and any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and (ii) upon request, any other materials specified in the related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee with respect to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shallServicers, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the Non-Lead SecuritizationServicing Agreement;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Agreement shall include the duty to service the Non-Lead Depositor Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(including, without limitation, providing all due diligence information, reports, written responses, negotiations vii) the Master Servicer shall withdraw from the related Collection Account and coordination) remit to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) Holder of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor Note, within two (including reasonable legal fees and expenses 2) Business Days of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) properly identified funds, any amounts that represent late collections received by the Master Servicer from the Borrower that are allocable to a or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall any third party in accordance with this Agreement), unless such amount would otherwise be remitted by included in the Master Servicer monthly remittance to the Holder of such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereofNote for such month; 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 prepayments to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(x) it shall not be amended in a manner that materially and adversely affects the rights of the Non-Lead Note Holder without their consent; and
(xi) satisfy ▇▇▇▇▇’▇ rating methodology as of the closing date of the Lead Securitization related to permitted investments and eligible accounts applicable to securities rated “Aaa” by ▇▇▇▇▇’▇;
(xii) in connection with (A) any amendment of the Servicing Agreement, a party to such Servicing Agreement is required to provide a copy of the executed amendment to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement (which may be by e-mail), together with a copy of such amendment in electronic format, no later than the effective date of such amendment, and (B) the termination, resignation and/or replacement of the Master Servicer or Special Servicer under the Servicing Agreement, the replacement “master servicer” or replacement “special servicer”, as applicable, is required to provide to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof;
(xiii) “servicer termination events” (or any analogous term under the Servicing Agreement) include customary market termination events with respect to failure to make advances, failure to remit payments to the Non-Lead Note Holder as required, failure to deliver (or cause to be delivered) materials or information required in order for the Non-Lead Note Holder or the depositor under the Non-Lead Servicing Agreement to timely comply with its obligations under the Exchange Act, the Securities Act or Form SF-3, and for rating agency triggers with respect to any Certificates, subject to customary grace periods (provided that, in the case of failures related to the securities laws, such grace periods will not cause a depositor under the Non-Lead Servicing Agreement to fail to comply with the applicable provisions of such securities laws);
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Non-Lead Note in accordance with becomes the subject of an “asset review” under the Non-Lead Securitization Servicing Agreement, the applicable parties to the Servicing Agreement are required to reasonably cooperate with the related asset representations reviewer or other applicable party to the Non-Lead Servicing Agreement in connection with such asset review, including with respect to providing access to related underlying documents to the extent the asset representations reviewer or such other applicable party to the Non-Lead Servicing Agreement has not obtained such documents from the Non-Lead Note Holder and such documents are in the possession of the applicable party to the Servicing Agreement; and
(xv) it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notprovisions materially con
Appears in 2 contracts
Sources: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2021-C59), Co Lender Agreement (BBCMS Mortgage Trust 2021-C9)
Provisions Relating to Securitization. (a) For so long as an any Initial Note Holder or its an Affiliate thereof (an each, a “Initial Note Holder Resizing Entity”) is the owner of its Note(sany Note (each, an “Owned Note”), such Initial Note Holder Resizing Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case each case, as applicable “New Notes”) reallocating the principal an Owned Note to such New Notes; reducing the Mortgage Interest Rates of its Note(s) such New Notes or severing its Note(s) an Owned Note into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)such Owned Note, provided that (i) the aggregate principal balance of the all outstanding New Notes following such amendments is no greater than the aggregate principal balance of the related original Note(s) Owned Note prior to such amendments, (ii) all New Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Notes prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Resizing Entity holding the New Notes shall notify the other Holders (orLead Note Holder, for any Note that has been contributed to a Securitizationthe Master Servicer, to the trustee Special Servicer, the Certificate Administrator and the applicable master servicer of such Securitization) Trustee in writing of such modified allocations and principal amounts. If the Lead Note Holder so requests, the Resizing Entity holding the New Notes (and any subsequent holder of such Notes) shall execute a confirmation of the continuing applicability of this Agreement to the New Notes, as so modified. Except for the foregoing reallocation and for modifications pursuant to the Lead Securitization Servicing Agreement, no Note may be modified or amended without the consent of its holder and the consent of the holder of each other Note. In connection with the foregoingforegoing (provided the conditions set forth in clauses (i) through (iv) above are satisfied, with respect to clauses (1i) through (iv), as certified by the Resizing Entity, on which certification the Master Servicer can rely), the Master Servicer is hereby authorized and directed to execute amendments to the Mortgage Loan Agreement Documents and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders Holders, as applicable, solely for the purpose of reflecting such reallocation of principal or such severing and that each New Note shall be a “Note” hereunder and for purposes of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the adding and modifying any definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notesthereto. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Each Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Securitization Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notSub-
Appears in 2 contracts
Sources: Co Lender Agreement (CD 2017-Cd3 Mortgage Trust), Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-P6)
Provisions Relating to Securitization. (a) For so long as an Initial Note A-2 is not in a securitization, the Note A-2 Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of its Note(s) Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing its Note(s) the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder Entity holding the New A-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee and the applicable master servicer of such Securitization) Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of Note(s)Note A-2, (2) if a Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Each Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and Trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that party is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided such party is not also a party to the Note A-2 PSA).
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within two Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect Trustee, to such the Non-Lead Note, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related each master servicer under a Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Noteon a monthly basis;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subany Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10-K, Form 10-D and 10D, Form 8-K), and (ii) upon request, any other materials specified in each of the related other Servicing Agreements as the parties to each Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required may require in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its their obligations under the Securities ActAct of 1933, the as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB AB, and Form SF-3 and (2) any other applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without law. Without limiting the generality of the foregoing (x) the foregoing, each Lead Depositor or the related Note Holder for a Lead Securitization shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days to the depositor and the Trustee for any prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, Securitization a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special each Lead Servicer (or any replacement Master Servicer or Special Servicer, as applicableat the expense of the Lead Note Holder) shallwill be required, upon reasonable prior written request, and subject to provide to the right of depositor and the Master Servicer or the Special Servicer, as the case may be, Trustee for any prior Securitization any other information required to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained comply in a Lead Securitization timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), for inclusion in and, with respect to the disclosure materials (orLead Servicers, in the case of a replacement Special Servicerupon prior written request, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the related Non-Lead SecuritizationServicing Agreements;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with Agreement shall include the duty to service each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations Note on behalf of the related Trustees and coordination) to the same extent as such party is required to cooperate related Certificate holders in accordance with the Lead Depositor under Article X (or any article substantially similar thereto) terms and provisions of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing this Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xivii) any late collections received by the Master Servicer from the Borrower that are allocable to for which a P&I Advance has already been paid by a master servicer or Trustee under a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee Servicing Agreement shall be remitted by the Master Servicer to such master servicer or trustee under a Non-Lead Master Servicer Servicing Agreement, as applicable, within one (1) Business Day of receipt and identification thereofof properly identified funds; 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 later collections to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an Holders are intended third-party beneficiary beneficiaries in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivx) the Servicing Agreement shall not be amended in a manner that materially and adversely affects the rights of the Non-Lead Note Holders without their consent;
(xi) Servicer Termination Events (or analogous term) with respect to the Master Servicer shall include the failure to timely remit payments to the Non-Lead Note Holders, which failure continues for two business days following the date on which such payment was to be made. Upon the occurrence of such a Servicer Termination Event by the Master Servicer affecting a Non-Lead Note Holder, if the Mortgage Loan becomes a Defaulted Mortgage Loan and Master Servicer is not otherwise terminated, the Special Servicer determines to sell Trustee shall, upon the direction of the related Non-Lead Note Holder, require the appointment of a subservicer with respect to the Mortgage Loan; and
(xii) the Servicing Standard in accordance the Servicing Agreement shall require, among other things, that each Servicer, in servicing the Mortgage Loan, must take into account the interests of each Holder and act in the best interests and for the benefit of the Holders together with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms Certificate holders of the Lead Securitization Servicing Agreement. In connection with any Securitization, as a collective whole as if such sale, the Special Servicer shall provide notHolders and Certificate holders constituted a single lender.
Appears in 2 contracts
Sources: Co Lender Agreement (COMM 2016-Dc2 Mortgage Trust), Co Lender Agreement (COMM 2016-Ccre28 Mortgage Trust)
Provisions Relating to Securitization. (a) New Notes. For so long as BNYM or an Initial Note Holder Affiliate of BNYM or its GACC or an Affiliate of GACC (an “Initial Note Holder EntityHolder”) is the owner of its Note(s)any Notes, such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes (“Amended Notes”) or additional notes (in either case “New Notes”) reallocating the principal of its Note(sthe Note or Notes that it owns (but in no case any Note that it does not then own) among Amended Notes and New Notes or severing its Note(s) a Note into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)the Note or Notes being amended or created, provided that (i) the aggregate principal balance of the Amended Notes and New Notes following such amendments is no greater than the principal balance of the related original Note(s) Amended Notes and New Notes prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) Amended Note of which it was a part prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis with the Amended Notes and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the each other Holders (orHolder, for as applicable, and, if any other Note that has been contributed to included in a Securitizationsecuritization, to the trustee and the parties under each applicable master servicer of such Securitization) PSA, in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)a Note, (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph Section 18(a). The Initial Note Holder whose Note is being reallocated or split pursuant to this Section 18(a) shall reimburse the other Holders for all costs and expenses incurred by the other Holders in connection with the reallocation or split.
(b) The Each Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and Trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) Notice to Parties to the Lead Securitization PSA.
(i) The Note A-4 Holder shall provide the Depositor, the Servicer, and the Special Servicer under the P3 PSA (provided such party is not also a party to the P3 PSA) notice of the Note A-4 Securitization in writing (which may be by email) prior to or promptly following the Note A-4 Securitization Date. Such notice shall contain contact information for each of the parties to the A-4 PSA and the identity of the Controlling Class Representative under such A-4 PSA. In addition, after the Note A-4 Securitization Date, the Note A-$ Holder shall send a copy of the Note A-4 PSA to the Depositor, the Servicer, and the Special Servicer under the P3 PSA (provided such party is not also a party to the Note A-4 PSA).
(ii) The Note A-2-2 Holder shall provide the Depositor, the Servicer, and the Special Servicer under the Lead Securitization PSA (as of the date of the Note A-2-2 Securitization) (provided such party is not also a party to the Note A-2 PSA) notice of the Note A-2-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-2-2 PSA and the identity of the Controlling Class Representative under such Note A-2-2 PSA. In addition, after the Note A-2-2 Securitization Date, the Note A-2-2 Holder shall send a copy of the Note A-2-2 PSA to the Depositor, the Servicer, and the Special Servicer under the Lead Securitization PSA (as of the Note A-2-2 Securitization Date) (provided such party is not also a party to the Note A-2-2 PSA).
(iii) The Note A-5-1 Holder shall provide the Depositor, the Servicer, and the Special Servicer under the Lead Securitization PSA (as of the date of the Note A-5-1 Securitization) (provided such party is not also a party to the Note A-5-1 PSA) notice of the Note A-5-1 Securitization in writing (which may be by email) prior to or promptly following the Note A-5-1 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-5-1 PSA and the identity of the Controlling Class Representative under such Note A-5-1 PSA. In addition, after the Note A-5-1 Securitization Date, the Note A-5-1 Holder shall send a copy of the Note A-5-1 PSA to the Depositor, the Servicer, and the Special Servicer under the Lead Securitization PSA (as of the Note A-5-1 Securitization Date) (provided such party is not also a party to the Note A-5-1 PSA).
(iv) The Note A-5-2 Holder shall provide the Depositor, the Servicer, and the Special Servicer under the Lead Securitization PSA (as of the date of the Note A-5-2 Securitization) (provided such party is not also a party to the Note A-5-2 PSA) notice of the Note A-5-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-5-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-5-2 PSA and the identity of the Controlling Class Representative under such Note A-5-2 PSA. In addition, after the Note A-5-2 Securitization Date, the Note A-5-2 Holder shall send a copy of the Note A-5-2 PSA to the Depositor, the Servicer, and the Special Servicer under the Lead Securitization PSA (as of the Note A-5-2 Securitization Date) (provided such party is not also a party to the Note A-5-2 PSA).
(v) The Note A-6 Holder shall provide the Depositor, the Servicer, and the Special Servicer under the Lead Securitization PSA (as of the date of the Note A-6 Securitization) (provided that party is not also a party to the Note A-6 PSA) notice of the Note A-6 Securitization in writing (which may be by email) prior to or promptly following the Note A-6 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-6 PSA and the identity of the Controlling Class Representative under such Note A-6 PSA. In addition, after the Note A-6 Securitization Date, the Note A-6 Holder shall send a copy of the Note A-6 PSA to the Depositor, the Servicer, and the Special Servicer under the Lead Securitization PSA (as of the Note A-6 Securitization Date) (provided such party is not also a party to the Note A-6 PSA).
(d) The Lead Securitization PSA shall:
(i) provide that the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) provide that if the Master Servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within two Business Days 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 nonrecoverabilitymade;
(iii) provide that the Master Servicer shall remit all payments received (or advanced) with respect to any Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect Trustee, to such the Non-Lead Note, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports provide that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related each master servicer under a Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to on a monthly basis on the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the applicable Master Servicer Remittance Date for the Non-Lead NoteDate;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subany Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10-K, Form 10-D and 10D, Form 8-K), and (ii) upon request, any other materials specified in each of the related other Servicing Agreements as the parties to each Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required may require in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its their obligations under the Securities ActAct of 1933, the as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB AB, and Form SF-3 and (2) any other applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without law. Without limiting the generality of the foregoing (x) the foregoing, each Lead Depositor or the related Note Holder for a Lead Securitization shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days to the depositor and the Trustee for any prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, Securitization a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special each Lead Servicer (or any replacement Master Servicer or Special Servicer, as applicableat the expense of the Lead Note Holder) shallwill be required, upon reasonable prior written request, and subject to provide to the right of depositor and the Master Servicer or the Special Servicer, as the case may be, Trustee for any prior Securitization any other information required to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained comply in a Lead Securitization timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), for inclusion in and with respect to the disclosure materials (orLead Servicers, in the case of a replacement Special Servicerupon prior written request, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the related Non-Lead SecuritizationServicing Agreements;
(xvi) provide that the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with Agreement shall include the duty to service each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations Note on behalf of the related Trustees and coordination) to the same extent as such party is required to cooperate related Certificate holders in accordance with the Lead Depositor under Article X terms and provisions of this Agreement;
(or any article substantially similar theretovii) of the Lead Securitization Servicing Agreement and in connection provide that, with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any respect to any/each Non-Lead Depositor (including reasonable legal fees Note, the Master Servicer shall withdraw from the related Collection Account and expenses remit to the Holder of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer Note, within one (1) Business Day of receipt and identification thereofof properly identified funds, any amounts that represent late collections or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to any third party in accordance with this Agreement), unless such amount would otherwise be included in the monthly remittance to the Holder of such Non-Lead Note for such month; provided, however, that to the extent any such amounts are received 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 prepayments to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notBus
Appears in 2 contracts
Sources: Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-Gc37), Co Lender Agreement (DBJPM 2016-C1 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as Citi or an Initial Note Holder or its Affiliate of Citi (an the “Initial Note Holder EntityA-1 Holder”) is the owner of its Note(s)Note A-1, such the Initial Note A-1 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-1 Notes”) reallocating the principal of its Note(s) Note A-1 among other New A-1 Notes; reducing the Mortgage Interest Rates of such New A-1 Notes or severing its Note(s) the Note A-1 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1, provided that (i) the aggregate principal balance of the New A-1 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-1 prior to such amendments, (iii) all New A-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-1 Holder Entity holding the New A-1 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee and the applicable master servicer of such Securitization) Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, any reduction of Mortgage Interest Rates or such severing of Note(s)Note A-1, (2) if a Note A-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) For so long as DB-AG or an Affiliate of DB-AG (the “Initial Note A-2 Holder”) is the owner of Note A-2, the Initial Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of Note A-2 among other New A-2 Notes; reducing the Mortgage Interest Rates of such New A-2 Notes or severing the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the parties to the Note A-1 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, any reduction of Mortgage Interest Rates or such severing of Note A-2, (2) if Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(b).
(c) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) the Master Servicer or Trustee shall be required to provide written notice to each the Non-Lead Master Servicer and each the Non-Lead Trustee of any P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any the Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such the Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or to make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such the Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each the Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each the Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any the Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related the Non-Lead Depositor and any the Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day business day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any the Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any the Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such the Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a the Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each the Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any the Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such the Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such the Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such the Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a the Non-Lead Note or reimbursable to a the Non-Lead Master Servicer or a the Non-Lead Trustee shall be remitted by the Master Servicer to such the Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each the Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such the Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each the Non-Lead Master Servicer and each the Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such the Non-Lead Master Servicer or such the Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to the Non-Lead Master Servicer who shall provide notice to the Non-Directing Holder of the planned sale and the Non-Directing Holder’s oppor
Appears in 2 contracts
Sources: Co Lender Agreement (JPMDB Commercial Mortgage Securities Trust 2016-C2), Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-C1)
Provisions Relating to Securitization. (a) For so long as an Initial any Note Holder or its Affiliate (an each, a “Initial Note Holder Resizing Entity”) is the owner of its Note(sany Note that is not included in a Securitization (each, an “Owned Note”), such Initial Note Holder Resizing Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case each case, as applicable “New Notes”) reallocating the principal an Owned Note to such New Notes; reducing the Mortgage Interest Rates of its Note(s) such New Notes or severing its Note(s) an Owned Note into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)such Owned Note, provided that (i) the aggregate principal balance of the all outstanding New Notes following such amendments is no greater than the aggregate principal balance of the related original Note(s) Owned Note prior to such amendments, (ii) all New Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Notes prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Resizing Entity holding the New Notes shall notify the other Holders (orNote Holders, for any Note that has been contributed to a Securitization, and to the trustee extent applicable, the Master Servicer, the Special Servicer, the Certificate Administrator and the applicable master servicer of such Securitization) Trustee in writing of such modified allocations and principal amounts. If the Lead Note Holder so requests, the Resizing Entity holding the New Notes (and any subsequent holder of such Notes) shall execute a confirmation of the continuing applicability of this Agreement to the New Notes, as so modified. Except for the foregoing reallocation and for modifications pursuant to the Lead Securitization Servicing Agreement, no Note may be modified or amended without the consent of its holder and the consent of the holder of each other Note. In connection with the foregoingforegoing (provided the conditions set forth in clauses (i) through (iv) above are satisfied, with respect to clauses (1i) through (iv), as certified by the Resizing Entity, on which certification the Master Servicer can rely), the Master Servicer is hereby authorized and directed to execute amendments to the Mortgage Loan Agreement Documents and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders Holders, as applicable, solely for the purpose of reflecting such reallocation of principal or such severing and that each New Note shall be a “Note” hereunder and for purposes of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the adding and modifying any definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notesthereto. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Each Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Non- Lead Securitization Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required required, and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;.
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any related Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day business day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment Depositor shall provide written notice (which may be by e-mail) of such proposed amendment to any Non▇▇▇-Lead Depositor ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related securitization of the planned sale and such Non-Directing Holder’s opportunity to bid on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or the failure to remit to the Master Servicer for deposit into the Collection Account or the related Loan Combination Custodial Account, as applicable, any amount required to be so remitted by the Special Servicer within one (1) Business Day afte
Appears in 2 contracts
Sources: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2017-C39), Co Lender Agreement (Morgan Stanley Capital I Trust 2017-H1)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇E▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇E▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide not
Appears in 2 contracts
Sources: Co Lender Agreement (Benchmark 2024-V8 Mortgage Trust), Co Lender Agreement (BBCMS Mortgage Trust 2024-5c27)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;.
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related
Appears in 2 contracts
Sources: Co Lender Agreement (BMO 2023-C6 Mortgage Trust), Co Lender Agreement (Benchmark 2023-B39 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial The Note A-2 Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New A-2 Notes”) reallocating the principal of its Note(s) Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing its Note(s) the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same weighted average interest rate as the original Note(s) Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity entity holding the New A-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Note A-1 PSA and the applicable master servicer of such Securitization) Note A-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)Note A-2, (2) if a Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(aSection 21(a). The Holder whose Note is being reallocated or split pursuant to this Section 21 shall reimburse the other Holders for all costs and expenses incurred by the other Holders in connection with the reallocation or split.
(b) The Lead Note A-3 Holder agrees that it shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case, the “New A-3 Notes”) reallocating the principal of Note A-3 among other New A-3 Notes; reducing the Interest Rates of such New A-3 Notes or severing the Note A-3 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-3, provided that (i) the aggregate principal balance of the New A-3 Notes following such amendments is no greater than the principal balance of the original Note A-3 prior to such amendments, (ii) all New A-3 Notes continue to have the same rate as the original Note A-3 prior to such amendments, (iii) all New A-3 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the entity holding the New A-3 Notes shall notify the parties to the Note A-1 PSA and the Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, or such severing of Note A-3, (2) if Note A-3 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this Section 21(b). The Holder whose Note is being reallocated or split pursuant to this Section 21 shall reimburse the other Holders for all costs and expenses incurred by the other Holders in connection with the reallocation or split.
(c) Each Non-Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer or Trustee applicable master servicer and trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 20, and funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Lead Trustee to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Lead Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Lead Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(d) Notice to Parties to the Lead Securitization PSA.
(i) The Note A-2 Holder shall provide the Depositor, the Servicer and the Special Servicer under the Lead Securitization PSA (as of the Note A-2 Securitization Date) (provided such party is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer and the Special Servicer under the Lead Securitization PSA (as of the Note A-2 Securitization Date) (provided such party is not also a party to the Note A-2 PSA).
(ii) The Note A-3 Holder shall provide the Depositor, the Servicer and the Special Servicer under the Lead Securitization PSA (as of the Note A-3 Securitization Date) (provided such party is not also a party to the Note A-3 PSA) notice of the Note A-3 Securitization in writing (which may be by email) prior to or promptly following the Note A-3 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-3 PSA and the identity of the Controlling Class Representative under such Note A-3 PSA. In addition, after the Note A-3 Securitization Date, the Note A-3 Holder shall send a copy of the Note A-3 PSA to the Depositor, the Servicer and the Special Servicer under the Lead Securitization PSA (as of the Note A-3 Securitization Date) (provided such party is not also a party to the Note A-3 PSA).
(e) The Lead Securitization PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related each master servicer under a Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to on a monthly basis on the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the applicable Master Servicer Remittance Date for the Non-Lead NoteDate;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subany Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other Servicing Agreements as the parties to each Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, each Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the trustee for any prior Securitization a copy of the Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, Form 10-D and any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and (ii) upon request, any other materials specified in the related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee with respect to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shallServicers, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (or analogous terms) as such terms are defined in the related Non-Lead Servicing Agreements;
(vi) the servicing duties of each of the Master Servicer and Special Servicer under the Servicing Agreement shall include the duty to service each Non-Lead Note on behalf of the related Trustees and related Certificate holders in accordance with respect the terms and provisions of this Agreement;
(vii) the Master Servicer shall withdraw from the related Collection Account and remit to the Holders of a Non-Lead Securitization;
(x) each Note, within 2 Business Days of the Master Servicerreceipt of properly identified funds, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (any amounts that represent late collections or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by principal prepayments on such Non-Lead Depositor Notes or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to any third party in any telephone conferences and meetings accordance with this Agreement), unless such amount would otherwise be included in the Commission and other costs monthly remittance to the Holder of such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from Notes for such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereofmonth; provided, however, that to the extent any such amounts are received after before 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections or principal prepayments to such each Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an Holders are intended third-party beneficiary beneficiaries in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivx) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have not be amended in a manner that materially and adversely affects the right and the obligation to sell all rights of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notNon
Appears in 2 contracts
Sources: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2021-C60), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2021-C59)
Provisions Relating to Securitization. (a) For so long as Natixis or an Initial Note Holder or its Affiliate of Natixis (an the “Initial Note Holder EntityA-2 Holder”) is the owner of its Note(s)Note A-2, such the Initial Note A-2 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of its Note(s) Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing its Note(s) the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and and
(iv) the Initial Note A-2 Holder Entity holding the New A-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee and the applicable master servicer of such Securitization) Note A-1 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of Note(s)Note A-2, (2) if a Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it A-2 PSA shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer or Trustee applicable master servicer and trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer applicable master servicer, special servicer or trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) in the Master Servicer shall remit all payments received with respect to any event such Non-Lead NoteNote Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, net of and that in the Servicing Fees and Special Servicing Fees payable to event that the Master Servicer and Special Servicer, as applicable, funds received with respect to such Non-Lead NoteNote are insufficient to cover such amounts, and any other applicable fees and reimbursements payable (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead NoteNote by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note Holder by the applicable Master Special Servicer Remittance Date for (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;and
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other be third party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality beneficiaries of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notprovisions.
Appears in 2 contracts
Sources: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2015-Nxs4), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2015-Nxs3)
Provisions Relating to Securitization. (a) For so long as an Initial Note A-2 is not in a securitization, the Note A-2 Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of its Note(s) Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing its Note(s) the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder Entity holding the New A-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee and the applicable master servicer of such Securitization) Note A-1 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of Note(s)Note A-2, (2) if a Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Each Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and Trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided such party is not also a party to the Note A-2 PSA).
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within two Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect Trustee, to such the Non-Lead Note, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related each master servicer under a Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Noteon a monthly basis;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subany Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10-K, Form 10-D and 10D, Form 8-K), and (ii) upon request, any other materials specified in each of the related other Servicing Agreements as the parties to each Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required may require in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its their obligations under the Securities ActAct of 1933, the as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB AB, and Form SF-3 and (2) any other applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without law. Without limiting the generality of the foregoing (x) the foregoing, each Lead Depositor or the related Note Holder for a Lead Securitization shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days to the depositor and the Trustee for any prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, Securitization a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master each Lead Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shallwill be required, upon reasonable prior written requestrequest and at the expense of the requesting party, and subject to provide to the right of depositor and the Master Servicer or the Special Servicer, as the case may be, Trustee for any prior Securitization any other information required to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained comply in a Lead Securitization timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), for inclusion in and with respect to the disclosure materials (orLead Servicers, in upon prior written request and at the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization expense of the related Non-Lead Noterequesting party, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the related Non-Lead SecuritizationServicing Agreements;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with Agreement shall include the duty to service each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations Note on behalf of the related Trustees and coordination) to the same extent as such party is required to cooperate related Certificate holders in accordance with the Lead Depositor under Article X (or any article substantially similar thereto) terms and provisions of the Lead Securitization Servicing this Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection accordance with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead DepositorStandard;
(xivii) any late collections received by the Master Servicer from the Borrower that are allocable to for which a P&I Advance has already been paid by a master servicer or Trustee under a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee Servicing Agreement shall be remitted by the Master Servicer to such master servicer or Trustee under a Non-Lead Master Servicer Servicing Agreement, as applicable, within one (1) Business Day of receipt and identification thereofof properly identified funds; 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 later collections to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an Holders are intended third-party beneficiary beneficiaries in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;; and
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide not.
Appears in 2 contracts
Sources: Co Lender Agreement (COMM 2016-Ccre28 Mortgage Trust), Co Lender Agreement (CSAIL 2016-C5 Commercial Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as Ladder, JPM or an Initial Note Holder Affiliate of Ladder or its Affiliate JPM (an “Initial Note Holder EntityHolder”) is the owner of its Note(s)any Notes, such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes (“Amended Notes”) or additional notes (in either case “New Notes”) reallocating the principal of its Note(sthe Note or Notes that it owns (but in no case any Note that it does not then own) among Amended Notes and New Notes or severing its Note(s) a Note into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)the Note or Notes being amended or created, provided that (i) the aggregate principal balance of the Amended Notes and New Notes following such amendments is no greater than the principal balance of the related original Note(s) Amended Notes and New Notes prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) Amended Note of which it was a part prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis with the Amended Notes and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the each other Holders (orHolder, for as applicable, and, if any other Note that has been contributed to included in a Securitizationsecuritization, to the trustee and the parties under each applicable master servicer of such Securitization) PSA, in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)a Note, (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph Section 18(a). The Initial Note Holder whose Note is being reallocated or split pursuant to this Section 18(a) shall reimburse the other Holders for all costs and expenses incurred by the other Holders in connection with the reallocation or split.
(b) The Each Non-Lead Servicing Agreement shall provide that:
(i) if the applicable master servicer, special servicer or trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(ii) in the event such Non-Lead Note Holder agrees that it shall cause is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17 and funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer, Lead Securitization certificate administrator, Lead Securitization operating advisor or Lead Trustee, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer, Lead Securitization certificate administrator, Lead Securitization operating advisor or Lead Trustee to pay itself from the Lead Securitization Trust Fund’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to provide reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iii) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as follows applicable, shall acknowledge that, (i) each of the Master Servicer, the Special Servicer and the non-lead trust will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Lead Trustee, (2) clause (iv) below and (3) clause (v) below and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note;
(iv) each of the Indemnified Parties shall be indemnified (as and to the same extent that the Lead Securitization Trust is required to indemnify each of such Indemnified Parties in respect of other mortgage loans in the Lead Securitization Trust pursuant to the terms of Lead Securitization Servicing Agreement) by the securitization trust holding such Non-Lead Note, against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with servicing and administration of the Mortgage Loan (or, with respect to the Lead Securitization operating advisor, incurred in connection with the provision of services for the Mortgage Loan) under the Lead Servicing Agreement (collectively, the “Indemnified Items”) to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the “Serviced Pari Passu Companion Loan Custodial Account” are insufficient for reimbursement of such following provisions are not included amounts, the related Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for its pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under such Non-Lead Servicing Agreement; provided, however, that any Non-Lead Servicing Agreement may include limitations and conditions on the payment or reimbursement of Indemnified Items to the Lead Securitization Servicing Agreement, they operating advisor (including limitations and conditions with respect to the timing of such payments or reimbursements and the sources of funds for such payments or reimbursements);
(v) the related Non-Lead Master Servicer shall furnish the name and other contact information of the person entitled to exercise the rights of the Non-Directing Holder to the special servicer designated under the C33 PSA upon the closing of the related Securitization and thereafter if the identity of such Person changes.
(vi) the Master Servicer and the Special Servicer shall be deemed incorporated therein third party beneficiaries of the foregoing provisions.
(c) The Note A-3-A Holder, the Note A-3-B Holder, the Note A-4-A Holder and made the Note A-4-B Holder shall provide the Depositor, the Servicer and the Special Servicer under the C33 PSA (as of the Note A-3-A Securitization Date, the Note A-3-B Securitization Date, the Note A-4-A Securitization Date and the Note A-4-B Securitization Date, respectively) (provided such party is not also a part thereof):party to the Note A-3-A PSA, the Note A-3-B PSA, the Note A-4-A PSA or the Note A-4-B PSA, respectively) notice of the Note A-3-A Securitization, the Note A-3-B Securitization, the Note A-4-A Securitization or the Note A-4-B Securitization, respectively, in writing (which may be by email) prior to or promptly following the Note A-3-A Securitization Date, the Note A-3-B Securitization Date, the Note A-4-A Securitization Date and the Note A-4-B Securitization Date, respectively. Such notice shall contain contact information for each of the parties to the applicable PSA and the identity of the Controlling Class Representative under such PSA. In addition, after the Note A-3-A Securitization Date, the Note A-3-B Securitization Date, the Note A-4-A Securitization Date and the Note A-4-B Securitization Date, the Note A-3-A Holder, the Note A-3-B Holder, the Note A-4-A Holder and the Note A-4-B Holder, as applicable, shall send a copy of the applicable PSA to the Depositor, the Servicer and the Special Servicer under the C33 PSA (as of the Note A-3-A Securitization Date, the Note A-3-B Securitization Date, the Note A-4-A Securitization Date and the Note A-4-B Securitization Date, respectively) (provided such party is not also a party to the Note A-3-A PSA, the Note A-3-B PSA, the Note A-4-A PSA or the Note A-4-B PSA, respectively).
(d) The C33 PSA shall provide that:
(i) the Master Servicer, Special Servicer or and Trustee for such Securitization shall be required to provide written notice to notify the servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer, Special Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect Trustee, to such the Non-Lead Note, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related each master servicer under a Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Noteon a monthly basis;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subany Non-Servicer to deliver)Lead Servicing Agreement, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10-K, Form 10-D and 10D, Form 8-K), and (ii) upon request, any other materials specified in each of the related other Servicing Agreements as the parties to each Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required may require in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its their obligations under the Securities ActAct of 1933, the as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB AB, and Form SF-3 and (2) any other applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without law. Without limiting the generality of the foregoing (x) the foregoing, each Lead Depositor or the related Note Holder for a Lead Securitization shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days to the depositor and the trustee for any prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, Securitization a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master each Lead Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shallwill be required, upon reasonable prior written request, and subject to provide to the right of depositor and the Master Servicer or the Special Servicer, as the case may be, trustee for any prior Securitization any other information required to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained comply in a Lead Securitization timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), for inclusion in the disclosure materials (orand, in the case of a replacement Special clauses (x) and (y) and with respect to the Lead Servicer, for inclusion in a Form 8-K) relating to any securitization upon prior written request and at the expense of the related Non-Lead Noterequesting party, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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 rules 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 time to time, in each case, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable ▇the S▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the related Non-Lead SecuritizationServicing Agreements;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with Agreement shall include the duty to service each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations Note on behalf of the related Trustees and coordination) to the same extent as such party is required to cooperate related Certificate holders in accordance with the Lead Depositor under Article X (or any article substantially similar thereto) terms and provisions of the Lead Securitization Servicing this Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xivii) any late collections received by the Master Servicer from the Borrower that are allocable to for which a P&I Advance has already been paid by a master servicer or trustee under a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee Servicing Agreement shall be remitted by the Master Servicer to such master servicer or trustee under a Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; providedServicing Agreement, howeveras applicable, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified fundsthereof;
(xiiviii) each the Non-Lead Note Holder is an Holders are intended third-party beneficiary beneficiaries in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) each party under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicerparty, as the case may be, and and, as applicable, the provisions regarding coordination of Advances;
(xivx) if the Mortgage Loan becomes a Defaulted Mortgage Loan and Master Servicer shall not be permitted to take any Major Decision unless it has obtained the consent or deemed consent of the Special Servicer determines (provided that such consent shall be deemed given (unless earlier objected to sell by the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all applicable Special Servicer) fifteen (15) Business Days after such Special Servicer’s receipt of the Notes as notes evidencing one whole loan applicable Master Servicer’s written recommendation and analysis with respect to such Major Decision and all information reasonably requested by such Special Servicer, and reasonably available to the applicable Master Servicer, in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any order to grant or withhold such saleconsent, the and such Special Servicer shall provide notnot be permitted to take any Major Decision (to the extent such Special Servicer is responsible for processing any such action) and shall not be permitted to consent to the Master Servicer’s taking of any Major Decision (to the extent such Master Servicer is responsible for processing any such action) as to which the Directing Holder has objected in writing within ten (10) Business Days (or, in certain cases, thirty (30) days) after the Directing Holder’s receipt of such Special Servicer’s written recommendation and analysis and all information reasonably requested by the Directing Holder, and reasonably available to such Special Servicer, in order to grant or withhold such consent (provided that if such written objection has not been received by such Special Servicer within such ten (10) Business Day (or thirty (30) day) period, then the Directing Holder will be deemed to have approved such action);
(xi) it shall not be amended in a manner that materially and adversely affects the rights of the Non-Lead Note Holders without their consent; and
(xii) satisfy M▇▇▇▇’▇ rating methodology related to permitted investments and eligible accounts applicable to securi
Appears in 2 contracts
Sources: Co Lender Agreement (JPMDB Commercial Mortgage Securities Trust 2016-C2), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2016-C33)
Provisions Relating to Securitization. (a) For so long as Citi or an Initial Note Holder or its Affiliate of Citi (an the “Initial Note Holder EntityA-1 Holder”) is the owner of its Note(s)Note A-1, such the Initial Note A-1 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-1 Notes”) reallocating the principal of its Note(s) Note A-1 among other New A-1 Notes; reducing the Mortgage Interest Rates of such New A-1 Notes or severing its Note(s) the Note A-1 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1, provided that (i) the aggregate principal balance of the New A-1 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-1 prior to such amendments, (iii) all New A-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-1 Holder Entity holding the New A-1 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee and the applicable master servicer of such Securitization) Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, any reduction of Mortgage Interest Rates or such severing of Note(s)Note A-1, (2) if a Note A-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) For so long as DB-AG or an Affiliate of DB-AG (the “Initial Note A-2 Holder”) is the owner of Note A-2, the Initial Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of Note A-2 among other New A-2 Notes; reducing the Mortgage Interest Rates of such New A-2 Notes or severing the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the parties to the Note A-1 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, any reduction of Mortgage Interest Rates or such severing of Note A-2, (2) if Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(b).
(c) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) the Master Servicer or Trustee shall be required to provide written notice to each the Non-Lead Master Servicer and each the Non-Lead Trustee of any P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any the Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such the Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or to make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such the Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each the Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each the Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any the Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related the Non-Lead Depositor and any the Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day business day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any the Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any the Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such the Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a the Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each the Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any the Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such the Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such the Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such the Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a the Non-Lead Note or reimbursable to a the Non-Lead Master Servicer or a the Non-Lead Trustee shall be remitted by the Master Servicer to such the Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each the Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such the Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each the Non-Lead Master Servicer and each the Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such the Non-Lead Master Servicer or such the Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to the Non-Lead Master Servicer who shall provide notice to the Non-Directing Holder of the planned sale and the Non-Directing Holder’s opportunity to submit an offer on the Mortgage Loan;
Appears in 1 contract
Sources: Co Lender Agreement (JPMDB Commercial Mortgage Securities Trust 2016-C2)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi18(b)(x) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day business day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Non- Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related securitization of the planned sale and such Non-Directing Holder’s opportunity to submit an offer on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or the failure to remit to the Master Servicer for deposit into the Collection Account or the related Loan Combination Custodial Account, as applicable, any amount required to be so remitte
Appears in 1 contract
Sources: Co Lender Agreement (Benchmark 2021-B31 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial Note A-1 is not in a securitization, the Note A-1 Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-1 Notes”) reallocating the principal of its Note(s) Note A-1 among other New A-1 Notes; reducing the Interest Rates of such New A-1 Notes or severing its Note(s) the Note A-1 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1, provided that (i) the aggregate principal balance of the New A-1 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-1 prior to such amendments, (iii) all New A-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-1 Holder Entity holding the New A-1 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Note A-2 PSA and the applicable master servicer of such Securitization) Note A-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of Note(s)Note A-1, (2) if a Note A-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead For so long as Note A-2 is not in a securitization, the Note A-2 Holder agrees that it shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the parties to the Note A-1 PSA and the Note A-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-2, (2) if Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(c) Each Non-Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and Trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(d) The Note A-1 Holder shall give each of the parties to the Note A-2 PSA (that is not also a party to the Note A-1 PSA) notice of the Note A-1 Securitization in writing (which may be by email) prior to or promptly following the Note A-1 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-1 PSA and the identity of the Controlling Class Representative under such Note A-1 PSA. In addition, after the Note A-1 Securitization Date, the Note A-1 Holder shall send a copy of the Note A-1 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-3 PSA (provided such party is not also a party to the Note A-1 PSA).
(e) The Note A-2 Holder shall give the Depositor, the Servicer, and the Special Servicer under the Note A-1 PSA (provided that party is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer, and the Special Servicer under the Note A-3 PSA (provided such party is not also a party to the Note A-2 PSA).
(f) The Note A-1 PSA shall:
(i) provide that the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) provide that if the Master Servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within two Business Days 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 nonrecoverabilitymade;
(iii) provide that the Master Servicer shall remit all payments received (or advanced) with respect to any Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect Trustee, to such the Non-Lead Note, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports provide that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related each master servicer under a Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Noteon a monthly basis;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subany Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10-K, Form 10-D and 10D, Form 8-K), and (ii) upon request, any other materials specified in each of the related other Servicing Agreements as the parties to each Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required may require in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its their obligations under the Securities ActAct of 1933, the as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB AB, and Form SF-3 and (2) any other applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without law. Without limiting the generality of the foregoing (x) the foregoing, each Lead Depositor or the related Note Holder for a Lead Securitization shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days to the depositor and the Trustee for any prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, Securitization a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special each Lead Servicer (or any replacement Master Servicer or Special Servicer, as applicableat the expense of the Lead Note Holder) shallwill be required, upon reasonable prior written request, and subject to provide to the right of depositor and the Master Servicer or the Special Servicer, as the case may be, Trustee for any prior Securitization any other information required to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained comply in a Lead Securitization timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), for inclusion in and, with respect to the disclosure materials (orLead Servicers, in the case of a replacement Special Servicerupon prior written request, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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 time to time, in each case, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable ▇the S▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the related Non-Lead SecuritizationServicing Agreements;
(xvi) provide that the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with Agreement shall include the duty to service each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations Note on behalf of the related Trustees and coordination) to the same extent as such party is required to cooperate related Certificate holders in accordance with the Lead Depositor under Article X (or any article substantially similar thereto) terms and provisions of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing this Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xivii) provide that any late collections received by the Master Servicer from the Borrower that are allocable to for which a P&I Advance has already been paid by a master servicer or trustee under a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee Servicing Agreement shall be remitted by the Master Servicer to such master servicer or trustee under a Non-Lead Master Servicer Servicing Agreement, as applicable, within one (1) Business Day of receipt and identification thereofof properly identified funds; 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 later collections to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each provide that the Non-Lead Note Holder is an Holders are intended third-party beneficiary beneficiaries in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) provide that each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;; and
(xivx) if provide that it shall not be amended in a manner that materially and adversely affects the Mortgage Loan becomes a Defaulted Mortgage Loan and rights of the Special Servicer determines to sell the Non-Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right Holders without their consent.
(xi) satisfy M▇▇▇▇’▇ rating methodology related to permitted investments and the obligation eligible accounts applicable to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notsecurities rated “Aaa” by M▇▇▇▇’▇.
Appears in 1 contract
Sources: Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-Gc36)
Provisions Relating to Securitization. (a) For so long as BSP or an Initial Note Holder or its Affiliate of BSP (an “Initial Note Holder EntityA-2 Holder”) is the owner of its Note(s)Note A-2, such Initial Note A-2 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New A-2 Notes”) reallocating the principal of its Note(s) Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing its Note(s) the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same weighted average interest rate as the original Note(s) Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity entity holding the New A-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Servicing Agreement and the applicable master servicer of such Securitization) Non-Lead Servicing Agreement in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all either of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)Note A-2, (2) if a Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(aSection 21(a). The Holder whose Note is being reallocated or split pursuant to this Section 21(a) shall reimburse the other Holder for all costs and expenses incurred by the other Holder in connection with the reallocation or split.
(b) The Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer or Trustee applicable master servicer and trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event the Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 20, and funds received with respect to the Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Lead Trustee to pay itself from the Lead Securitization Trust’s general account then the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Lead Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Lead Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to the Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to the Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall provide the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) (provided such party is not also a party to the Note A-1 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) provided such party is not also a party to the Note A-1 PSA.
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any the Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related master servicer under the Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to on a monthly basis on the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the applicable Master Servicer Remittance Date for the Non-Lead NoteDate;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subthe Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other Servicing Agreements as the parties to the Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, the Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the trustee for any prior Securitization a copy of the Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, Form 10-D and any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and (ii) upon request, any other materials specified in the related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee with respect to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shallServicers, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the Non-Lead SecuritizationServicing Agreement;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Agreement shall include the duty to service the Non-Lead Depositor Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(including, without limitation, providing all due diligence information, reports, written responses, negotiations vii) the Master Servicer shall withdraw from the related Collection Account and coordination) remit to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) Holder of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor Note, within two (including reasonable legal fees and expenses 2) Business Days of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) properly identified funds, any amounts that represent late collections received by the Master Servicer from the Borrower that are allocable to a or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall any third party in accordance with this Agreement), unless such amount would otherwise be remitted by included in the Master Servicer monthly remittance to the Holder of such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereofNote for such month; provided, however, that to the extent any such amounts are received after before 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections or principal prepayments to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(x) it shall not be amended in a manner that materially and adversely affects the rights of the Non-Lead Note Holder without their consent; and
(xi) satisfy ▇▇▇▇▇’▇ rating methodology as of the closing date of the Lead Securitization related to permitted investments and eligible accounts applicable to securities rated “Aaa” by ▇▇▇▇▇’▇;
(xii) in connection with (A) any amendment of the Servicing Agreement, a party to such Servicing Agreement is required to provide a copy of the executed amendment to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement (which may be by e-mail), together with a copy of such amendment in electronic format, no later than the effective date of such amendment, and (B) the termination, resignation and/or replacement of the Master Servicer or Special Servicer under the Servicing Agreement, the replacement “master servicer” or replacement “special servicer”, as applicable, is required to provide to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof;
(xiii) “servicer termination events” (or any analogous term under the Servicing Agreement) include customary market termination events with respect to failure to make advances, failure to remit payments to the Non-Lead Note Holder as required, failure to deliver (or cause to be delivered) materials or information required in order for the Non-Lead Note Holder or the depositor under the Non-Lead Servicing Agreement to timely comply with its obligations under the Exchange Act, the Securities Act or Form SF-3, and for rating agency triggers with respect to any Certificates, subject to customary grace periods (provided that, in the case of failures related to the securities laws, such grace periods will not cause a depositor under the Non-Lead Servicing Agreement to fail to comply with the applicable provisions of such securities laws); and
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Non-Lead Note in accordance with becomes the subject of an “asset review” under the Non-Lead Securitization Servicing Agreement, it shall have the right applicable parties to the Servicing Agreement are required to reasonably cooperate with the related asset representations reviewer or other applicable party to the Non-Lead Servicing Agreement in connection with such asset review, including with respect to providing access to related underlying documents to the extent the asset representations reviewer or such other applicable party to the Non-Lead Servicing Agreement has not obtained such documents from the Non-Lead Note Holder and such documents are in the obligation to sell all possession of the Notes applicable party to the Servicing Agreement.
(e) If any provision required to be included in the Note A-2 PSA is not included therein as notes evidencing one whole loan required in accordance with the terms this Agreement, each Holder agrees that each such provision shall be deemed to be incorporated as a provision of and made a part of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notNote A-2 PSA.
Appears in 1 contract
Sources: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2021-C59)
Provisions Relating to Securitization. (a) For so long as BSP or an Initial Note Holder or its Affiliate of BSP (an “Initial Note Holder EntityA-1 Holder”) is the owner of its Note(s)Note A-1, such Initial Note A-1 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New A-1 Notes”) reallocating the principal of its Note(s) Note A-1 among other New A-1 Notes; reducing the Interest Rates of such New A-1 Notes or severing its Note(s) the Note A-1 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1, provided that (i) the aggregate principal balance of the Amended A-1 Notes and New A-1 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same weighted average interest rate as the original Note(s) Note A-1 prior to such amendments, (iii) all New A-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-1 Holder Entity holding the New A-1 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee and the applicable master servicer of such Securitization) Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all either of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)Note A-1, (2) if a Note A-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(aSection 21(a). The Initial Note A-1 Holder whose Note is being reallocated or split pursuant to this Section 21(a) shall reimburse the other Holder for all costs and expenses incurred by the other Holder in connection with the reallocation or split. If a New A-1 Note is created out of the Lead Note the Initial Note A-1 Holder shall designate which Note will be the Lead Securitization Note hereunder.
(b) The Non-Lead Note Holder agrees that (if the Non-Lead Note is included in a Securitization other than the Lead Securitization) it shall cause the Non-Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):follows:
(i) the Master Servicer or Trustee applicable master servicer and trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event the Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 20, and funds received with respect to the Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Lead Trustee to pay itself from the Lead Securitization Trust’s general account then the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Lead Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Lead Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to the Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to the Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-1 Holder shall provide the Depositor, the Servicer and the Special Servicer under the Note A-2 PSA (as of the Note A-1 Securitization Date) (provided such party is not also a party to the Note A-1 PSA) notice of the Note A-1 Securitization in writing (which may be by email) prior to or promptly following the Note A-1 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-1 PSA and the identity of the Controlling Class Representative under such Note A-1 PSA. In addition, after the Note A-1 Securitization Date, the Note A-1 Holder shall send a copy of the Note A-1 PSA to the Depositor, the Servicer and the Special Servicer under the Note A-2 PSA (as of the Note A-1 Securitization Date) provided such party is not also a party to the Note A-2 PSA.
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any the Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related master servicer under the Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to on a monthly basis on the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the applicable Master Servicer Remittance Date for the Non-Lead NoteDate;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subthe Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other Servicing Agreements as the parties to the Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, the Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the trustee for any prior Securitization a copy of the Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, Form 10-D and any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and (ii) upon request, any other materials specified in the related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee with respect to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shallServicers, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the Non-Lead SecuritizationServicing Agreement;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Agreement shall include the duty to service the Non-Lead Depositor Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(including, without limitation, providing all due diligence information, reports, written responses, negotiations vii) the Master Servicer shall withdraw from the related Collection Account and coordination) remit to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) Holder of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor Note, within two (including reasonable legal fees and expenses 2) Business Days of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) properly identified funds, any amounts that represent late collections received by the Master Servicer from the Borrower that are allocable to a or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall any third party in accordance with this Agreement), unless such amount would otherwise be remitted by included in the Master Servicer monthly remittance to the Holder of such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereofNote for such month; 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 prepayments to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(x) it shall not be amended in a manner that materially and adversely affects the rights of the Non-Lead Note Holder without their consent; and
(xi) satisfy ▇▇▇▇▇’▇ rating methodology as of the closing date of the Lead Securitization related to permitted investments and eligible accounts applicable to securities rated “Aaa” by ▇▇▇▇▇’▇;
(xii) in connection with (A) any amendment of the Servicing Agreement, a party to such Servicing Agreement is required to provide a copy of the executed amendment to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement (which may be by e-mail), together with a copy of such amendment in electronic format, no later than the effective date of such amendment, and (B) the termination, resignation and/or replacement of the Master Servicer or Special Servicer under the Servicing Agreement, the replacement “master servicer” or replacement “special servicer”, as applicable, is required to provide to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof;
(xiii) “servicer termination events” (or any analogous term under the Servicing Agreement) include customary market termination events with respect to failure to make advances, failure to remit payments to the Non-Lead Note Holder as required, failure to deliver (or cause to be delivered) materials or information required in order for the Non-Lead Note Holder or the depositor under the Non-Lead Servicing Agreement to timely comply with its obligations under the Exchange Act, the Securities Act or Form SF-3, and for rating agency triggers with respect to any Certificates, subject to customary grace periods (provided that, in the case of failures related to the securities laws, such grace periods will not cause a depositor under the Non-Lead Servicing Agreement to fail to comply with the applicable provisions of such securities laws);
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Non-Lead Note in accordance with becomes the subject of an “asset review” under the Non-Lead Securitization Servicing Agreement, the applicable parties to the Servicing Agreement are required to reasonably cooperate with the related asset representations reviewer or other applicable party to the Non-Lead Servicing Agreement in connection with such asset review, including with respect to providing access to related underlying documents to the extent the asset representations reviewer or such other applicable party to the Non-Lead Servicing Agreement has not obtained such documents from the Non-Lead Note Holder and such documents are in the possession of the applicable party to the Servicing Agreement; and
(xv) it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notprovisions m
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Provisions Relating to Securitization. (a) For so long as an Initial any Note Holder or its Affiliate (an each, a “Initial Note Holder Resizing Entity”) is the owner of its Note(sany Note that is not included in a Securitization (each, an “Owned Note”), such Initial Note Holder Resizing Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case each case, as applicable “New Notes”) reallocating the principal an Owned Note to such New Notes; reducing the Mortgage Interest Rates of its Note(s) such New Notes or severing its Note(s) an Owned Note into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)such Owned Note, provided that (i) the aggregate principal balance of the all outstanding New Notes following such amendments is no greater than the aggregate principal balance of the related original Note(s) Owned Note prior to such amendments, (ii) all New Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Notes prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Resizing Entity holding the New Notes shall notify the other Holders (orNote Holders, for any Note that has been contributed to a Securitization, and to the trustee extent applicable, the Master Servicer, the Special Servicer, the Certificate Administrator and the applicable master servicer of such Securitization) Trustee in writing of such modified allocations and principal amounts. If the Lead Note Holder so requests, the Resizing Entity holding the New Notes (and any subsequent holder of such Notes) shall execute a confirmation of the continuing applicability of this Agreement to the New Notes, as so modified. Except for the foregoing reallocation and for modifications pursuant to the Lead Securitization Servicing Agreement, no Note may be modified or amended without the consent of its holder and the consent of the holder of each other Note. In connection with the foregoingforegoing (provided the conditions set forth in clauses (i) through (iv) above are satisfied, with respect to clauses (1i) through (iv), as certified by the Resizing Entity, on which certification the Master Servicer can rely), the Master Servicer is hereby authorized and directed to execute amendments to the Mortgage Loan Agreement Documents and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders Holders, as applicable, solely for the purpose of reflecting such reallocation of principal or such severing and that each New Note shall be a “Note” hereunder and for purposes of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the adding and modifying any definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notesthereto. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Each Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Non- Lead Securitization Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required required, and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;.
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any related Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day business day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇E▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment Depositor shall provide written notice (which may be by e-mail) of such proposed amendment to any NonN▇▇-Lead Depositor ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇E▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related securitization of the planned sale and such Non-Directing Holder’s opportunity to bid on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or the failure to remit to the Master Servicer for deposit into the Collection Account or the related Loan Combination Custodial Account, as applicable, any amount required to be so remitted by the Special Servicer within one (1) Business Day afte
Appears in 1 contract
Provisions Relating to Securitization. (a) For so long as Natixis or an Initial Note Holder or its Affiliate of Natixis (an “Initial Note Holder EntityA-2 Holder”) is the owner of its Note(s)Note A-2, such Initial Note A-2 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New A-2 Notes”) reallocating the principal of its Note(s) Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing its Note(s) the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2, provided that (i) the aggregate principal balance of the Amended A-2 Notes and New A-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same weighted average interest rate as the original Note(s) Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder Entity holding the New A-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee and the applicable master servicer of such Securitization) Note A-1 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all either of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)Note A-2, (2) if a Note 2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(aSection 21(a). The Initial Note A-1 Holder whose Note is being reallocated or split pursuant to this Section 21(a) shall reimburse the other Holder for all costs and expenses incurred by the other Holder in connection with the reallocation or split.
(b) The Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer or Trustee applicable master servicer and trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event the Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 20, and funds received with respect to the Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Lead Trustee to pay itself from the Lead Securitization Trust’s general account then the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Lead Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Lead Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to the Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to the Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall provide the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) (provided such party is not also a party to the Note A-1 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-1 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer and the Special Servicer under the Note A-2 PSA (as of the Note A-2 Securitization Date) provided such party is not also a party to the Note A-2 PSA.
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any the Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related master servicer under the Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to on a monthly basis on the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the applicable Master Servicer Remittance Date for the Non-Lead NoteDate;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subthe Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other Servicing Agreements as the parties to the Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, the Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the trustee for any prior Securitization a copy of the Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, Form 10-D and any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and (ii) upon request, any other materials specified in the related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee with respect to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shallServicers, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the Non-Lead SecuritizationServicing Agreement;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Agreement shall include the duty to service the Non-Lead Depositor Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(including, without limitation, providing all due diligence information, reports, written responses, negotiations vii) provide that the Master Servicer shall withdraw from the related Collection Account and coordination) remit to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) Holder of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor Note, within two (including reasonable legal fees and expenses 2) Business Days of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) properly identified funds, any amounts that represent late collections received by the Master Servicer from the Borrower that are allocable to a or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall any third party in accordance with this Agreement), unless such amount would otherwise be remitted by included in the Master Servicer monthly remittance to the Holder of such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereofNote for such month; 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 prepayments to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivx) if it shall not be amended in a manner that materially and adversely affects the Mortgage Loan becomes a Defaulted Mortgage Loan and rights of the Special Servicer determines to sell the Non-Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all Holder without their consent;
(xi) satisfy ▇▇▇▇▇’▇ rating methodology as of the Notes as notes evidencing one whole loan in accordance with the terms closing date of the Lead Securitization related to permitted investments and eligible accounts applicable to securities rated “Aaa” by Moody’s;
(xii) provide that, in connection with (A) any amendment of the Servicing Agreement. In , a party to such Servicing Agreement is required to provide a copy of the executed amendment to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement (which may be by e-mail), together with a copy of such amendment in electronic format, no later than the effective date of such amendment, and (B) the termination, resignation and/or replacement of the Master Servicer or Special Servicer under the Servicing Agreement, the replacement “master servicer” or replacement “special servicer”, as applicable, is required to provide to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof;
(xiii) provide that “servicer termination events” (or any analogous term under the Servicing Agreement) include customary market termination events with respect to failure to make advances, failure to remit payments to the Non-Lead Note Holder as required, failure to deliver (or cause to be delivered) materials or information required in order for the Non-Lead Note Holder or the depositor under the Non-Lead Servicing Agreement to timely comply with its obligations under the Exchange Act, the Securities Act or Form SF-3, and for rating agency triggers with respect to any Certificates, subject to customary grace periods (provided that, in the case of failures related to the securities laws, such grace periods will not cause a depositor under the Non-Lead Servicing Agreement to fail to comply with the applicable provisions of such securities laws); and
(xiv) provide that if the Non-Lead Note becomes the subject of an “asset review” under the Non-Lead Servicing Agreement, the applicable parties to the Servicing Agreement are required to reasonably cooperate with the related asset representations reviewer or other applicable party to the Non-Lead Servicing Agreement in connection with such asset review, including with respect to providing access to related underlying documents to the extent the asset representations reviewer or such other applicable party to the Non-Lead Servicing Agreement has not obtained such documents from the Non-Lead Note Holder and such documents are in the possession of the applicable party to the Servicing Agreement;
(e) If any provision required to be included in the Note A-1 PSA or the Note A-2 PSA is not included therein as required in this Agreement, each Holder agrees that each such sale, provision shall be deemed to be incorporated as a provision of and made a part of the Special Servicer shall provide notNote A-1 PSA
Appears in 1 contract
Sources: Co Lender Agreement (UBS Commercial Mortgage Trust 2018-C14)
Provisions Relating to Securitization. (a) For so long as Natixis or an Initial Note Holder or its Affiliate of Natixis (an “Initial Note Holder EntityA-2 Holder”) is the owner of its Note(s)Note A-2, such Initial Note A-2 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New A-2 Notes”) reallocating the principal of its Note(s) Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing its Note(s) the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2, provided that (i) the aggregate principal balance of the Amended A-2 Notes and New A-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same weighted average interest rate as the original Note(s) Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder Entity holding the New A-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee and the applicable master servicer of such Securitization) Note A-1 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all either of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)Note A-2, (2) if a Note 2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(aSection 21(a). The Initial Note A-1 Holder whose Note is being reallocated or split pursuant to this Section 21(a) shall reimburse the other Holder for all costs and expenses incurred by the other Holder in connection with the reallocation or split.
(b) The Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer or Trustee applicable master servicer and trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event the Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 20, and funds received with respect to the Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Lead Trustee to pay itself from the Lead Securitization Trust’s general account then the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Lead Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Lead Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to the Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to the Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall provide the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) (provided such party is not also a party to the Note A-1 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-1 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer and the Special Servicer under the Note A-2 PSA (as of the Note A-2 Securitization Date) provided such party is not also a party to the Note A-2 PSA.
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any the Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related master servicer under the Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to on a monthly basis on the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the applicable Master Servicer Remittance Date for the Non-Lead NoteDate;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subthe Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other Servicing Agreements as the parties to the Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, the Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the trustee for any prior Securitization a copy of the Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, Form 10-D and any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and (ii) upon request, any other materials specified in the related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee with respect to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shallServicers, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the Non-Lead SecuritizationServicing Agreement;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Agreement shall include the duty to service the Non-Lead Depositor Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(including, without limitation, providing all due diligence information, reports, written responses, negotiations vii) provide that the Master Servicer shall withdraw from the related Collection Account and coordination) remit to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) Holder of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor Note, within two (including reasonable legal fees and expenses 2) Business Days of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) properly identified funds, any amounts that represent late collections received by the Master Servicer from the Borrower that are allocable to a or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall any third party in accordance with this Agreement), unless such amount would otherwise be remitted by included in the Master Servicer monthly remittance to the Holder of such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereofNote for such month; 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 prepayments to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivx) if it shall not be amended in a manner that materially and adversely affects the Mortgage Loan becomes a Defaulted Mortgage Loan and rights of the Special Servicer determines to sell the Non-Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all Holder without their consent;
(xi) satisfy ▇▇▇▇▇’▇ rating methodology as of the Notes as notes evidencing one whole loan in accordance with the terms closing date of the Lead Securitization related to permitted investments and eligible accounts applicable to securities rated “Aaa” by ▇▇▇▇▇’▇;
(xii) provide that, in connection with (A) any amendment of the Servicing Agreement. In , a party to such Servicing Agreement is required to provide a copy of the executed amendment to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement (which may be by e-mail), together with a copy of such amendment in electronic format, no later than the effective date of such amendment, and (B) the termination, resignation and/or replacement of the Master Servicer or Special Servicer under the Servicing Agreement, the replacement “master servicer” or replacement “special servicer”, as applicable, is required to provide to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof;
(xiii) provide that “servicer termination events” (or any analogous term under the Servicing Agreement) include customary market termination events with respect to failure to make advances, failure to remit payments to the Non-Lead Note Holder as required, failure to deliver (or cause to be delivered) materials or information required in order for the Non-Lead Note Holder or the depositor under the Non-Lead Servicing Agreement to timely comply with its obligations under the Exchange Act, the Securities Act or Form SF-3, and for rating agency triggers with respect to any Certificates, subject to customary grace periods (provided that, in the case of failures related to the securities laws, such grace periods will not cause a depositor under the Non-Lead Servicing Agreement to fail to comply with the applicable provisions of such securities laws); and
(xiv) provide that if the Non-Lead Note becomes the subject of an “asset review” under the Non-Lead Servicing Agreement, the applicable parties to the Servicing Agreement are required to reasonably cooperate with the related asset representations reviewer or other applicable party to the Non-Lead Servicing Agreement in connection with such asset review, including with respect to providing access to related underlying documents to the extent the asset representations reviewer or such other applicable party to the Non-Lead Servicing Agreement has not obtained such documents from the Non-Lead Note Holder and such documents are in the possession of the applicable party to the Servicing Agreement;
(e) If any provision required to be included in the Note A-1 PSA or the Note A-2 PSA is not included therein as required in this Agreement, each Holder agrees that each such sale, provision shall be deemed to be incorporated as a provision of and made a part of the Special Servicer shall provide notNote A-1 PSA
Appears in 1 contract
Sources: Co Lender Agreement (CSAIL 2018-C14 Commercial Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇E▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇E▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shal
Appears in 1 contract
Sources: Co Lender Agreement (Benchmark 2025-V15 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as BSP or an Initial Note Holder or its Affiliate of BSP (an “Initial Note Holder EntityA-2 Holder”) is the owner of its Note(s)Note A-2, such Initial Note A-2 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New A-2 Notes”) reallocating the principal of its Note(s) Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing its Note(s) the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same weighted average interest rate as the original Note(s) Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity entity holding the New A-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Servicing Agreement and the applicable master servicer of such Securitization) Non-Lead Servicing Agreement in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all either of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)Note A-2, (2) if a Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(aSection 21(a). The Holder whose Note is being reallocated or split pursuant to this Section 21(a) shall reimburse the other Holder for all costs and expenses incurred by the other Holder in connection with the reallocation or split.
(b) The Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer or Trustee applicable master servicer and trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event the Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 20, and funds received with respect to the Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Lead Trustee to pay itself from the Lead Securitization Trust’s general account then the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Lead Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Lead Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to the Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to the Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall provide the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) (provided such party is not also a party to the Note A-1 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) provided such party is not also a party to the Note A-1 PSA.
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any the Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related master servicer under the Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to on a monthly basis on the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the applicable Master Servicer Remittance Date for the Non-Lead NoteDate;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subthe Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other Servicing Agreements as the parties to the Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, the Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the trustee for any prior Securitization a copy of the Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, Form 10-D and any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and (ii) upon request, any other materials specified in the related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee with respect to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shallServicers, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the Non-Lead SecuritizationServicing Agreement;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Agreement shall include the duty to service the Non-Lead Depositor Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(including, without limitation, providing all due diligence information, reports, written responses, negotiations vii) the Master Servicer shall withdraw from the related Collection Account and coordination) remit to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) Holder of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor Note, within two (including reasonable legal fees and expenses 2) Business Days of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) properly identified funds, any amounts that represent late collections received by the Master Servicer from the Borrower that are allocable to a or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall any third party in accordance with this Agreement), unless such amount would otherwise be remitted by included in the Master Servicer monthly remittance to the Holder of such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereofNote for such month; 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 prepayments to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(x) it shall not be amended in a manner that materially and adversely affects the rights of the Non-Lead Note Holder without their consent; and
(xi) satisfy ▇▇▇▇▇’▇ rating methodology as of the closing date of the Lead Securitization related to permitted investments and eligible accounts applicable to securities rated “Aaa” by ▇▇▇▇▇’▇;
(xii) in connection with (A) any amendment of the Servicing Agreement, a party to such Servicing Agreement is required to provide a copy of the executed amendment to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement (which may be by e-mail), together with a copy of such amendment in electronic format, no later than the effective date of such amendment, and (B) the termination, resignation and/or replacement of the Master Servicer or Special Servicer under the Servicing Agreement, the replacement “master servicer” or replacement “special servicer”, as applicable, is required to provide to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof;
(xiii) “servicer termination events” (or any analogous term under the Servicing Agreement) include customary market termination events with respect to failure to make advances, failure to remit payments to the Non-Lead Note Holder as required, failure to deliver (or cause to be delivered) materials or information required in order for the Non-Lead Note Holder or the depositor under the Non-Lead Servicing Agreement to timely comply with its obligations under the Exchange Act, the Securities Act or Form SF-3, and for rating agency triggers with respect to any Certificates, subject to customary grace periods (provided that, in the case of failures related to the securities laws, such grace periods will not cause a depositor under the Non-Lead Servicing Agreement to fail to comply with the applicable provisions of such securities laws);
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Non-Lead Note in accordance with becomes the subject of an “asset review” under the Non-Lead Securitization Servicing Agreement, it the applicable parties to the Servicing Agreement are required to reasonably cooperate with the related asset representations reviewer or other applicable party to the Non-Lead Servicing Agreement in connection with such asset review, including with respect to providing access to related underlying documents to the extent the asset representations reviewer or such other applicable party to the Non-Lead Servicing Agreement has not obtained such documents from the Non-Lead Note Holder and such documents are in the possession of the applicable party to the Servicing Agreement; and
(xv) shall have provisions materially consistent with those set forth in market-standard CMBS servicing agreements with respect to:
(1) servicing transfer events that would result in the right and the obligation to sell all transfer of the Notes as notes evidencing one whole loan in accordance with Mortgage Loan to special servicing status;
(2) the terms authority of the Lead servicers in the Note A-2 Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notto grant or
Appears in 1 contract
Sources: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2021-C59)
Provisions Relating to Securitization. (a) For so long as GACC or an Initial Note Holder or its Affiliate of GACC (an the “Initial Note Holder EntityA-1 Holder”) is the owner of its Note(s)Note A-1, such the Initial Note A-1 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-1 Notes”) reallocating the principal of its Note(s) Note A-1 among other New A-1 Notes; reducing the Interest Rates of such New A-1 Notes or severing its Note(s) the Note A-1 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1, provided that (i) the aggregate principal balance of the New A-1 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-1 prior to such amendments, (iii) all New A-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and and
(iv) the Initial Note A-1 Holder Entity holding the New A-1 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Note A-2 PSA and the applicable master servicer of such Securitization) Note A-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of Note(s)Note A-1, (2) if a Note A-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead For so long as GACC or an Affiliate of GACC (the “Initial Note Holder agrees that it shall cause A-3 Holder”) is the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) the Master Servicer or Trustee shall be required to provide written notice to each Non-Lead Master Servicer and each Non-Lead Trustee owner of any P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable AdvanceA-3, the Master Servicer Initial Note A-3 Holder shall provide each Non-Lead Master Servicer written notice of such determination promptly after such determination was made together with such reports that have the Master Servicer delivered to the Special Servicer or Trustee in connection with notification of its determination of nonrecoverability;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Noteright, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant subject to the terms of the Lead Securitization Servicing Agreement Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-3 Notes”) reallocating the principal of Note A-3 among other New A-3 Notes; reducing the Interest Rates of such New A-3 Notes or severing the Note A-3 into one or more further “component” notes in the aggregate principal amount equal to the extent related then outstanding principal balance of Note A-3, provided that (i) the aggregate principal balance of the New A-3 Notes following such amendments is no greater than the principal balance of Note A-3 prior to such amendments, (ii) all New A-3 Notes continue to have the same or a lower interest rate as the Note A-3 prior to such amendments, (iii) all New A-3 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the Mortgage Loanterms of this Agreement and (iv) the Initial Note A-3 Holder holding the New A-3 Notes shall notify the parties to the Note A-1 PSA and the Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(vi1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and Special Servicer, as applicable, shall provide this Agreement (or to amend and restate the Special Servicer Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-3, (2) if Note A-3 is severed into “component” notes, such component notes shall provide to each have their same rights as the Master Servicer for provision by the Master Servicer) respective original Note and (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii3) the servicing duties of each definition of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan term “Securitization” and all of the Notes on behalf of related defined terms may be amended (and new terms added, as necessary) to reflect the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder New A-3 Notes. Rating Agency Confirmation shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall not be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect required to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with facilitate the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notthis paragraph 18(b).
Appears in 1 contract
Sources: Co Lender Agreement (COMM 2015-Ccre26 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) or severing its Note(s) into one or more further “component” notes in the aggregate principal amount equal to the then-outstanding principal balance of its Note(s), provided that (i) the aggregate principal balance of the New Notes following such amendments is no greater than the principal balance of the related original Note(s) prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, to the trustee and the applicable master servicer of such Securitization) in writing of such modified allocations and principal amounts. In connection with the foregoing, ,
(1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s), (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi18(b)(x) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Non- Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Non -Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day business day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇▇ -compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Non -Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(xix) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xix) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiixi) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiixii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivxiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notnotice to each Non-Lead Master Servicer who shall provide notice to the respective Non-Directing Holder in the related securitization of the planned sale and such Non-Directing Holder’s opportunity to submit an offer on the Mortgage Loan;
(xiv) the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Note Holder without the consent of such Non-Lead Note Holder;
(xv) to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Certificates issued in connection with any Non-Lead Securitization to the same extent a Rating Agency Confirmation is provided with respect to the Certificates issued in connection with the Lead Securitization;
(xvi) Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include (i) solely with respect to the Master Servicer, the failure to timely remit payments to any Non-Lead Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or the failure to remit to the Master Servicer for deposit into the Collection Account or the related Loan Combination Custodial Account, as applicable, any amount required to be so remi
Appears in 1 contract
Sources: Co Lender Agreement (Benchmark 2022-B35 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial The Note A-1 Holder or its Affiliate (an “Initial and the Note A-2 Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New Notes”) reallocating the principal of its Note(s) Note A-1 or Note A-2 among other New Notes; reducing the Interest Rates of such New Notes or severing its Note(s) the Note A-1 or A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1 or A-2, as applicable, provided that (i) the aggregate principal balance of the New Notes and following such amendments is no greater than the principal balance of the related respective original Note(s) Note prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the respective original Note(s) Note prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Servicing Agreement and the applicable master servicer of such Securitization) Non-Lead Servicing Agreement in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all either of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)Note A-1 or Note A-2, (2) if a Note A-1 or Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(aSection 21(a). The Holder whose Note is being reallocated or split pursuant to this Section 21(a) shall reimburse the other Holder for all costs and expenses incurred by the other Holder in connection with the reallocation or split.
(b) The the Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer or Trustee applicable master servicer and trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event the Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 20, and funds received with respect to the Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Lead Trustee to pay itself from the Lead Securitization Trust’s general account then the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Lead Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Lead Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to the Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to the Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall provide the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) (provided such party is not also a party to the Note A-1 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2PSA to the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) provided such party is not also a party to the Note A-1 PSA.
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any the Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related master servicer under the Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to on a monthly basis on the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the applicable Master Servicer Remittance Date for the Non-Lead NoteDate;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subthe Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other Servicing Agreements as the parties to the Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, the Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the trustee for any prior Securitization a copy of the Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, Form 10-D and any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and (ii) upon request, any other materials specified in the related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee with respect to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shallServicers, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the Non-Lead SecuritizationServicing Agreement;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Agreement shall include the duty to service the Non-Lead Depositor Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(including, without limitation, providing all due diligence information, reports, written responses, negotiations vii) provide that the Master Servicer shall withdraw from the related Collection Account and coordination) remit to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) Holder of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor Note, within two (including reasonable legal fees and expenses 2) Business Days of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) properly identified funds, any amounts that represent late collections received by the Master Servicer from the Borrower that are allocable to a or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall any third party in accordance with this Agreement), unless such amount would otherwise be remitted by included in the Master Servicer monthly remittance to the Holder of such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereofNote for such month; 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 prepayments to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivx) if it shall not be amended in a manner that materially and adversely affects the Mortgage Loan becomes a Defaulted Mortgage Loan and rights of the Special Servicer determines to sell the Non-Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all Holder without their consent; and
(xi) satisfy ▇▇▇▇▇’▇ rating methodology as of the Notes as notes evidencing one whole loan in accordance with the terms closing date of the Lead Securitization related to permitted investments and eligible accounts applicable to securities rated “Aaa” by ▇▇▇▇▇’▇;
(xii) provide that, in connection with (A) any amendment of the Servicing Agreement. In , a party to such Servicing Agreement is required to provide a copy of the executed amendment to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement (which may be by e-mail), together with a copy of such amendment in electronic format, no later than the effective date of such amendment, and (B) the termination, resignation and/or replacement of the Master Servicer or Special Servicer under the Servicing Agreement, the replacement “master servicer” or replacement “special servicer”, as applicable, is required to provide to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof;
(xiii) provide that “servicer termination events” (or any analogous term under the Servicing Agreement) include customary market termination events with respect to failure to make advances, failure to remit payments to the Non-Lead Note Holder as required, failure to deliver (or cause to be delivered) materials or information required in order for the Non-Lead Note Holder or the depositor under the Non-Lead Servicing Agreement to timely comply with its obligations under the Exchange Act, the Securities Act or Form SF-3, and for rating agency triggers with respect to any Certificates, subject to customary grace periods (provided that, in the case of failures related to the securities laws, such grace periods will not cause a depositor under the Non-Lead Servicing Agreement to fail to comply with the applicable provisions of such securities laws);
(xiv) provide that if the Non-Lead Note becomes the subject of an “asset review” under the Non-Lead Servicing Agreement, the applicable parties to the Servicing Agreement are required to reasonably cooperate with the related asset representations reviewer or other applicable party to the Non-Lead Servicing Agreement in connection with any such saleasset review, including with respect to providing access to related underlying documents to the Special Servicer extent the asset representations reviewer or such other applicable party to the Non-Lead Servicing Agreement has not obtained such documents from the Non- Lead Note Holder and such documents are in the possession of the applicable party to the Servicing Agreement; and
(xv) shall provide nothave provisions materially consistent with those set forth in the Model PSA with respect to:
(1) servicing transfer events that would result in the transfer of the Mortgage Loan to special servicing status;
(2) the authority of the servicers in the Note A-2 Securitization to grant or agree o
Appears in 1 contract
Sources: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2019-C50)
Provisions Relating to Securitization. (a) For so long as Natixis or an Initial Note Holder or its Affiliate of Natixis (an “Initial Note Holder EntityA-2 Holder”) is the owner of its Note(s)Note A-2, such Initial Note A-2 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New A-2 Notes”) reallocating the principal of its Note(s) Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing its Note(s) the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2, provided that (i) the aggregate principal balance of the Amended A-2 Notes and New A-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same weighted average interest rate as the original Note(s) Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder Entity holding the New A-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee and the applicable master servicer of such Securitization) Note A-1 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all either of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)Note A-2, (2) if a Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(aSection 21(a). The Initial Note A-2 Holder whose Note is being reallocated or split pursuant to this Section 21(a) shall reimburse the other Holder for all costs and expenses incurred by the other Holder in connection with the reallocation or split.
(b) The Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer or Trustee applicable master servicer and trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event the Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 20, and funds received with respect to the Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Lead Trustee to pay itself from the Lead Securitization Trust’s general account then the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Lead Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Lead Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to the Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to the Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall provide the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) (provided such party is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) provided such party is not also a party to the Note A-2 PSA.
(d) The Lead Securitization PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any the Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related master servicer under the Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to on a monthly basis on the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the applicable Master Servicer Remittance Date for the Non-Lead NoteDate;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subthe Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other Servicing Agreements as the parties to the Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, the Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the trustee for any prior Securitization a copy of the Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, Form 10-D and any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and (ii) upon request, any other materials specified in the related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee with respect to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shallServicers, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the Non-Lead SecuritizationServicing Agreement;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Agreement shall include the duty to service the Non-Lead Depositor Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(including, without limitation, providing all due diligence information, reports, written responses, negotiations vii) the Master Servicer shall withdraw from the related Collection Account and coordination) remit to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) Holder of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor Note, within two (including reasonable legal fees and expenses 2) Business Days of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) properly identified funds, any amounts that represent late collections received by the Master Servicer from the Borrower that are allocable to a or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall any third party in accordance with this Agreement), unless such amount would otherwise be remitted by included in the Master Servicer monthly remittance to the Holder of such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereofNote for such month; 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 prepayments to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(x) it shall not be amended in a manner that materially and adversely affects the rights of the Non-Lead Note Holder without their consent;
(xi) satisfy ▇▇▇▇▇’▇ rating methodology as of the closing date of the Lead Securitization related to permitted investments and eligible accounts applicable to securities rated “Aaa” by Moody’s; and
(xii) in connection with (A) any amendment of the Servicing Agreement, a party to such Servicing Agreement is required to provide a copy of the executed amendment to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement (which may be by e-mail), together with a copy of such amendment in electronic format, no later than the effective date of such amendment, and (B) the termination, resignation and/or replacement of the Master Servicer or Special Servicer under the Servicing Agreement, the replacement “master servicer” or replacement “special servicer”, as applicable, is required to provide to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof;
(xiii) “servicer termination events” (or any analogous term under the Servicing Agreement) include customary market termination events with respect to failure to make advances, failure to remit payments to the Non-Lead Note Holder as required, failure to deliver (or cause to be delivered) materials or information required in order for the Non-Lead Note Holder or the depositor under the Non-Lead Servicing Agreement to timely comply with its obligations under the Exchange Act, the Securities Act or Form SF-3, and for rating agency triggers with respect to any Certificates, subject to customary grace periods (provided that, in the case of failures related to the securities laws, such grace periods will not cause a depositor under the Non-Lead Servicing Agreement to fail to comply with the applicable provisions of such securities laws); and
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Non-Lead Note in accordance with becomes the subject of an “asset review” under the Non-Lead Securitization Servicing Agreement, it shall have the right applicable parties to the Servicing Agreement are required to reasonably cooperate with the related asset representations reviewer or other applicable party to the Non-Lead Servicing Agreement in connection with such asset review, including with respect to providing access to related underlying documents to the extent the asset representations reviewer or such other applicable party to the Non-Lead Servicing Agreement has not obtained such documents from the Non-Lead Note Holder and such documents are in the obligation to sell all possession of the Notes applicable party to the Servicing Agreement.
(e) If any provision required to be included in the Note A-1 PSA or the Note A-2 PSA is not included therein as notes evidencing one whole loan required in accordance with the terms this Agreement, each Holder agrees that each such provision shall be deemed to be incorporated as a provision of and made a part of the Lead Securitization Servicing Agreement. In connection with any such saleNote A-1 PSA or the Note A-2 PSA, as the Special Servicer shall provide notcase ma
Appears in 1 contract
Provisions Relating to Securitization. (a) For so long as an Initial The Note A-1 Holder or its Affiliate (an “Initial and the Note A-2 Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New Notes”) reallocating the principal of its Note(s) Note A-1 or Note A-2 among other New Notes; reducing the Interest Rates of such New Notes or severing its Note(s) the Note A-1 or A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1 or A-2, as applicable, provided that (i) the aggregate principal balance of the New Notes and following such amendments is no greater than the principal balance of the related respective original Note(s) Note prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the respective original Note(s) Note prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Servicing Agreement and the applicable master servicer of such Securitization) Non-Lead Servicing Agreement in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all either of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)Note A-1 or Note A-2, (2) if a Note A-1 or Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(aSection 21(a). The Holder whose Note is being reallocated or split pursuant to this Section 21(a) shall reimburse the other Holder for all costs and expenses incurred by the other Holder in connection with the reallocation or split.
(b) The Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer or Trustee applicable master servicer and trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event the Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 20, and funds received with respect to the Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Lead Trustee to pay itself from the Lead Securitization Trust’s general account then the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Lead Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Lead Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to the Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to the Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall provide the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) (provided such party is not also a party to the Note A-1 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) provided such party is not also a party to the Note A-1 PSA.
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any the Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related master servicer under the Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to on a monthly basis on the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the applicable Master Servicer Remittance Date for the Non-Lead NoteDate;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subthe Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other Servicing Agreements as the parties to the Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, the Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the trustee for any prior Securitization a copy of the Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, Form 10-D and any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and (ii) upon request, any other materials specified in the related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee with respect to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shallServicers, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable ▇the S▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the Non-Lead SecuritizationServicing Agreement;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Agreement shall include the duty to service the Non-Lead Depositor Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(including, without limitation, providing all due diligence information, reports, written responses, negotiations vii) the Master Servicer shall withdraw from the related Collection Account and coordination) remit to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) Holder of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor Note, within two (including reasonable legal fees and expenses 2) Business Days of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) properly identified funds, any amounts that represent late collections received by the Master Servicer from the Borrower that are allocable to a or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall any third party in accordance with this Agreement), unless such amount would otherwise be remitted by included in the Master Servicer monthly remittance to the Holder of such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereofNote for such month; 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 prepayments to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(x) it shall not be amended in a manner that materially and adversely affects the rights of the Non-Lead Note Holder without their consent; and
(xi) satisfy M▇▇▇▇’▇ rating methodology as of the closing date of the Lead Securitization related to permitted investments and eligible accounts applicable to securities rated “Aaa” by M▇▇▇▇’▇;
(xii) in connection with (A) any amendment of the Servicing Agreement, a party to such Servicing Agreement is required to provide a copy of the executed amendment to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement (which may be by e-mail), together with a copy of such amendment in electronic format, no later than the effective date of such amendment, and (B) the termination, resignation and/or replacement of the Master Servicer or Special Servicer under the Servicing Agreement, the replacement “master servicer” or replacement “special servicer”, as applicable, is required to provide to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof;
(xiii) “servicer termination events” (or any analogous term under the Servicing Agreement) include customary market termination events with respect to failure to make advances, failure to remit payments to the Non-Lead Note Holder as required, failure to deliver (or cause to be delivered) materials or information required in order for the Non-Lead Note Holder or the depositor under the Non-Lead Servicing Agreement to timely comply with its obligations under the Exchange Act, the Securities Act or Form SF-3, and for rating agency triggers with respect to any Certificates, subject to customary grace periods (provided that, in the case of failures related to the securities laws, such grace periods will not cause a depositor under the Non-Lead Servicing Agreement to fail to comply with the applicable provisions of such securities laws);
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Non-Lead Note in accordance with becomes the subject of an “asset review” under the Non-Lead Securitization Servicing Agreement, it the applicable parties to the Servicing Agreement are required to reasonably cooperate with the related asset representations reviewer or other applicable party to the Non-Lead Servicing Agreement in connection with such asset review, including with respect to providing access to related underlying documents to the extent the asset representations reviewer or such other applicable party to the Non-Lead Servicing Agreement has not obtained such documents from the Non-Lead Note Holder and such documents are in the possession of the applicable party to the Servicing Agreement; and
(xv) shall have provisions materially consistent with those set forth in market-standard CMBS servicing agreements with respect to:
(1) servicing transfer events that would result in the right and the obligation to sell all transfer of the Notes as notes evidencing one whole loan in accordance with Mortgage Loan to special servicing status;
(2) the terms authority of the Lead servicers in the Note A-2 Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notto grant or agree or consent to material mod
Appears in 1 contract
Sources: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2019-C54)
Provisions Relating to Securitization. (a) For so long as GACC or an Initial Note Holder or its Affiliate of GACC (an the “Initial Note Holder EntityA-2-2 Holder”) is the owner of its Note(s)Note A-2-2, such the Initial Note A-2-2 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2-2 Notes”) reallocating the principal of its Note(s) Note A-2-2 among other New A-2-2 Notes; reducing the Interest Rates of such New A-2-2 Notes or severing its Note(s) the Note A-2-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2-2, provided that (i) the aggregate principal balance of the New A-2-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2-2 prior to such amendments, (ii) all New A-2-2 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-2-2 prior to such amendments, (iii) all New A-2-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2-2 Holder Entity holding the New A-2-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Note A-1 PSA and the applicable master servicer of such Securitization) Note A-2-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of Note(s)Note A-2-2, (2) if a Note A-2-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead For so long as GACC or an Affiliate of GACC (the “Initial Note A-3 Holder”) is the owner of Note A-3, the Initial Note A-3 Holder agrees that it shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-3 Notes”) reallocating the principal of Note A-3 among other New A-3 Notes; reducing the Interest Rates of such New A-3 Notes or severing the Note A-3 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-3, provided that (i) the aggregate principal balance of the New A-3 Notes following such amendments is no greater than the principal balance of Note A-3 prior to such amendments, (ii) all New A-3 Notes continue to have the same or a lower interest rate as the Note A-3 prior to such amendments, (iii) all New A-3 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-3 Holder holding the New A-3 Notes shall notify the parties to the Note A-1 PSA and the Note A-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-3, (2) if Note A-3 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(c) For so long as GACC or an Affiliate of GACC (the “Initial Note A-4 Holder”) is the owner of Note A-4, the Initial Note A-4 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-4 Notes”) reallocating the principal of Note A-4 among other New A-4 Notes; reducing the Interest Rates of such New A-4 Notes or severing the Note A-4 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-4, provided that (i) the aggregate principal balance of the New A-4 Notes following such amendments is no greater than the principal balance of Note A-4 prior to such amendments, (ii) all New A-4 Notes continue to have the same or a lower interest rate as the Note A-4 prior to such amendments, (iii) all New A-4 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-4 Holder holding the New A-4 Notes shall notify the parties to the Note A-1 PSA and the Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-4, (2) if Note A-4 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-4 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(b).
(d) Each Non-Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer applicable master servicer, special servicer or trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) in the Master Servicer shall remit all payments received with respect to any event such Non-Lead NoteNote Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, net of and that in the Servicing Fees and Special Servicing Fees payable to event that the Master Servicer and Special Servicer, as applicable, funds received with respect to such Non-Lead NoteNote are insufficient to cover such amounts, and any other applicable fees and reimbursements payable (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with the any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead NoteNote by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note Holder by the applicable Master Special Servicer Remittance Date for (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;and
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide be third party beneficiaries of the foregoing provisions.
(e) The Note A-2-2 Holder shall give each of the parties to the Master Servicer for provision by the Master Servicer) Note A-1 PSA (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other that will not also be a party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viiNote A-2-2 PSA) the servicing duties of each notice of the Master Servicer and Special Servicer under the Lead Note A-2-2 Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice writing (which may be by e-mail) in a timely manner (but no later not less than three (3) Business Days 5 business days’ prior to closing) the Note A-2-2 Securitization Date. Such notice shall contain contact information for each of the occurrence parties to the Note A-2-2 PSA and the identity of the Controlling Class Representative under such SecuritizationNote A-2-2 PSA. In addition, and (2) no later than one (1) Business Day following after the closing date of such SecuritizationNote A-2-2 Securitization Date, the Note A-2-2 Holder shall send a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) Note A-2-2 PSA to each of the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject parties to the right Note A-1 PSA.
(f) The Note A-3 Holder shall give each of the Master Servicer or parties to the Special Servicer, as Note A-1 PSA (that will not also be a party to the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost A-3 PSA) notice of the related Non-Lead Sponsor) (or, Note A-3 Securitization in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice writing (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later not less than three (3) Business Days 5 business days’ prior to the date Note A-3 Securitization Date. Such notice shall contain contact information for each of effectiveness of such amendment, and, on the date of effectiveness of such amendment parties to the Lead Note A-3 PSA and the identity of the Controlling Class Representative under such Note A-3 PSA. In addition, after the Note A-3 Securitization Servicing AgreementDate, provide the Note A-3 Holder shall send a copy of such amendment in an ▇▇▇▇▇-compatible format the Note A-3 PSA to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicerparties to the Note A-1 PSA.
(g) The Note A-4 Holder shall give each of the parties to the Note A-1 PSA (that will not also be a party to the Note A-4 PSA) notice of the Note A-4 Securitization in writing (which may be by e-mail) not less than 5 business days’ prior to the Note A-4 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-4 PSA and the identity of the Controlling Class Representative under such Note A-4 PSA. In addition, after the Note A-4 Securitization Date, the Special Servicer, Note A-4 Holder shall send a copy of the Custodian and Note A-4 PSA to each of the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) parties to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notA-1 PSA.
Appears in 1 contract
Provisions Relating to Securitization. (a) For so long as Ladder or GACC or an Initial Note Holder or its Affiliate thereof (an “Initial Note Holder EntityHolder”) is the owner of its Note(sa Note (each, an “Owned Note”), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New Notes”) reallocating the principal of its Note(s) the related Owned Note to such New Notes; or severing its Note(sthe related Owned Note (or such New Notes) into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)the related Owned Note, or New Notes, as applicable, provided that (i) the aggregate principal balance of the such New Notes following such amendments is no greater than the principal balance of the related original Note(s) Owned Note, or New Notes, as applicable, prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(srelated Owned Note (or such New Notes) prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and Agreement, (iv) the Initial Note Holder Entity holding the such New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee and the applicable master servicer of such Securitization) Lead Securitization in writing of such modified allocations and principal amounts, and (v) the execution of such amendments and New Notes shall not violate the Servicing Standard. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)the related Owned Note, or New Notes, as applicable,, (2) if a an Owned Note or New Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes, as applicable. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a). The Initial Note Holder whose Owned Note or New Note is being reallocated or split pursuant to this Section 18(a) shall reimburse the other Holders for all costs and expenses incurred by the other Holders in connection with the reallocation or split.
(b) The Lead each of the Note Holder agrees that it A-1-B PSA, the Note A-2-A PSA, the Note A-2-B PSA, the Note A-3 PSA, the Note A-4-B PSA, the Note A-5 PSA and the Note A-6 PSA shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer applicable master servicer, special servicer or trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) in the Master Servicer shall remit all payments received with respect to any event such Non-Lead NoteNote Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, net of and that in the Servicing Fees and Special Servicing Fees payable to event that the Master Servicer and Special Servicer, as applicable, funds received with respect to such Non-Lead NoteNote are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer, Lead Securitization certificate administrator, Lead Securitization operating advisor or Lead Trustee, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and any other applicable fees (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer, Lead Securitization certificate administrator, Lead Securitization operating advisor or Lead Trustee to pay itself from the Lead Securitization Trust Fund’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to pay the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of trustee and reimbursements payable to the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer, the Special Servicer and the Trustee non-lead trust will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead NoteNote by the Master Servicer or the Lead Trustee, to and (2) clause (v) below and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Note Holder by Servicing Agreement with respect to any provisions therein relating to (1) the applicable Master Servicer Remittance Date for the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note; provided, that any late collections received Note by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports it being understood that the Special Servicer is not required to deliver to the Master Servicermake any Advances) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y2) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect indemnification of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) each of the Master Servicer Indemnified Parties shall be indemnified (as and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to same extent the Lead Securitization Servicing Agreement at the time provided Trust is required to such other party;
(vii) the servicing duties of indemnify each of the Master Servicer and Special Servicer under such Indemnified Parties in respect of other mortgage loans in the Lead Securitization Servicing Agreement shall include the duty Trust pursuant to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to securitization trust holding such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with servicing and administration of the Mortgage Loan (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Serviceror, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each caseoperating advisor, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with provision of services for the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar theretoMortgage Loan) of under the Lead Securitization Servicing AgreementAgreement (collectively, the “Indemnified Items”) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the “Serviced Pari Passu Companion Loan Custodial Account” are received after 3:00 p.m. Eastern time on any given Business Dayinsufficient for reimbursement of such amounts, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled required to enforce reimburse each of the rights applicable Indemnified Parties for its pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under such Non-Lead Servicing Agreement; provided, however, that any Non-Lead Servicing Agreement may include limitations and conditions on the payment or reimbursement of Indemnified Items to the Lead Securitization operating advisor (including limitations and conditions with respect to the timing of such payments or reimbursements and the sources of funds for such payments or reimbursements);
(vi) the related Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Lead Securitization operating advisor and Master Servicer (i) promptly following Securitization of such Non-Lead Note Holder under this Agreement and Securitization Note, notice of the deposit of such Non-Lead Securitization Servicing Agreement;
Note into a Securitization Trust (xiii) each which notice shall also provide contact information for the related Non-Lead Trustee, certificate administrator, Non-Lead Master Servicer Servicer, non-lead special servicer and each the party designated to exercise the rights of the “Non-Lead Special Servicer shall each be Controlling Note Holder” under this Agreement), accompanied by a third-party beneficiary certified copy of the executed Non- Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification and (ii) notice of any subsequent change in the identity of such Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” with respect to such Non-Lead Special Servicer, as Securitization Note under this Agreement (together with the case may be, and the provisions regarding coordination of Advancesrelevant contact information);
(xivvii) if the Mortgage Loan becomes a Defaulted Mortgage Loan Master Servicer and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all be third party beneficiaries of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notforegoing provisions.
Appears in 1 contract
Sources: Co Lender Agreement (COMM 2015-Lc23 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as Citi or an Initial Note Holder or its Affiliate of Citi (an the “Initial Note Holder EntityA-1 Holder”) is the owner of its Note(s)Note A-1, such the Initial Note A-1 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-1 Notes”) reallocating the principal of its Note(s) Note A-1 among other New A-1 Notes; reducing the Mortgage Interest Rates of such New A-1 Notes or severing its Note(s) the Note A-1 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1, provided that (i) the aggregate principal balance of the New A-1 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-1 prior to such amendments, (iii) all New A-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-1 Holder Entity holding the New A-1 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Note A-2 PSA, the Note A-3 PSA and the applicable master servicer of such Securitization) Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, any reduction of Mortgage Interest Rates or such severing of Note(s)Note A-1, (2) if a Note A-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) For so long as Citi or an Affiliate of Citi (the “Initial Note A-2 Holder”) is the owner of Note A-2, the Initial Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of Note A-2 among other New A-2 Notes; reducing the Mortgage Interest Rates of such New A-2 Notes or severing the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the parties to the Note A-1 PSA, the Note A-3 PSA and the Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, any reduction of Mortgage Interest Rates or such severing of Note A-2, (2) if Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(b).
(c) For so long as Starwood or an Affiliate of Starwood (the “Initial Note A-3 Holder”) is the owner of Note A-3, the Initial Note A-3 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-3 Notes”) reallocating the principal of Note A-3 among other New A-3 Notes; reducing the Mortgage Interest Rates of such New A-3 Notes or severing the Note A-3 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-3, provided that (i) the aggregate principal balance of the New A-3 Notes following such amendments is no greater than the principal balance of Note A-3 prior to such amendments, (ii) all New A-3 Notes continue to have the same or a lower interest rate as the Note A-3 prior to such amendments, (iii) all New A-3 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-3 Holder holding the New A-3 Notes shall notify the parties to the Note A-1 PSA, the Note A-2 PSA and the Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, any reduction of Mortgage Interest Rates or such severing of Note A-3, (2) if Note A-3 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(c).
(d) For so long as Starwood or an Affiliate of Starwood (the “Initial Note A-4 Holder”) is the owner of Note A-4, the Initial Note A-4 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-4 Notes”) reallocating the principal of Note A-4 among other New A-4 Notes; reducing the Mortgage Interest Rates of such New A-4 Notes or severing the Note A-4 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-4, provided that (i) the aggregate principal balance of the New A-4 Notes following such amendments is no greater than the principal balance of Note A-4 prior to such amendments, (ii) all New A-4 Notes continue to have the same or a lower interest rate as the Note A-4 prior to such amendments, (iii) all New A-4 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-4 Holder holding the New A-4 Notes shall notify the parties to the Note A-1 PSA, the Note A-2 PSA and the Note A-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, any reduction of Mortgage Interest Rates or such severing of Note A-4, (2) if Note A-4 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-4 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(d).
(e) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi18(e)(x) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-15G, Form 10-K, Form 10-10- D and Form 8-K), and (ii) upon request, any other materials specified in the related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”)SF-3, (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day business day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇E▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide not
Appears in 1 contract
Sources: Co Lender Agreement (JPMCC Commercial Mortgage Securities Trust 2016-Jp3)
Provisions Relating to Securitization. (a) For so long as RMF or an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) of RMF is the owner of its Note(s)Note A-2, such Initial the Note A-2 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of its Note(s) Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing its Note(s) the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder Entity holding the New A-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee and the applicable master servicer of such Securitization) Note A-1 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of Note(s)Note A-2, (2) if a Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Each Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and Trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating
(1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall give the Depositor, the Master Servicer and the Special Servicer under the Note A-1 PSA (provided such party is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA.
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within two Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect Trustee, to such the Non-Lead Note, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related each master servicer under a Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Noteon a monthly basis;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subany Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10-K, Form 10-D and 10D, Form 8-K), and (ii) upon request, any other materials specified in each of the related other Servicing Agreements as the parties to each Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required may require in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its their obligations under the Securities ActAct of 1933, the as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB AB, and Form SF-3 and (2) any other applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without law. Without limiting the generality of the foregoing (x) the foregoing, each Lead Depositor or the related Note Holder for a Lead Securitization shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days to the depositor and the Trustee for any prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, Securitization a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special each Lead Servicer (or any replacement Master Servicer or Special Servicer, as applicableat the expense of the Lead Note Holder) shallwill be required, upon reasonable prior written request, and subject to provide to the right of depositor and the Master Servicer or the Special Servicer, as the case may be, Trustee for any other Securitization any other information required to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained comply in a Lead Securitization timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), for inclusion in and, with respect to the disclosure materials Lead Servicers (or, in at the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization expense of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicablerequesting party), shall provide 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 Securitization. As used in this Agreement, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the United States Securities and Exchange Commission (the “Commission”) in each casethe adopting release (Asset-Backed Securities, at Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506,1,631 (Jan. 7, 2005)) or by the cost staff of the related Non-Lead Sponsor)Commission, and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which or as may be provided by e-mail) of such proposed amendment the Commission or its staff time to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteetime. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable ▇the S▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the related Non-Lead SecuritizationServicing Agreements;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with Agreement shall include the duty to service each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations Note on behalf of the related Trustees and coordination) to the same extent as such party is required to cooperate related Certificate holders in accordance with the Lead Depositor under Article X (or any article substantially similar thereto) terms and provisions of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing this Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xivii) any late collections received by the Master Servicer from the Borrower that are allocable to for which a P&I Advance has already been paid by a master servicer or trustee under a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee Servicing Agreement shall be remitted by the Master Servicer to such master servicer or Trustee under a Non-Lead Master Servicer Servicing Agreement, as applicable, within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an Holders are intended third-party beneficiary beneficiaries in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;; and
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide not.
Appears in 1 contract
Sources: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2015-C31)
Provisions Relating to Securitization. (a) For so long as an Initial The Note A-1 Holder or its Affiliate (an “Initial and the Note A-2 Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New Notes”) reallocating the principal of its Note(s) Note A-1 or Note A-2 among other New Notes; reducing the Interest Rates of such New Notes or severing its Note(s) the Note A-1 or A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1 or A-2, as applicable, provided that (i) the aggregate principal balance of the New Notes and following such amendments is no greater than the principal balance of the related respective original Note(s) Note prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the respective original Note(s) Note prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity entity holding the New Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Servicing Agreement and the applicable master servicer of such Securitization) Non-Lead Servicing Agreement in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all either of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)Note A-1 or Note A-2, (2) if a Note A-1 or Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(aSection 21(a). The Holder whose Note is being reallocated or split pursuant to this Section 21(a) shall reimburse the other Holder for all costs and expenses incurred by the other Holder in connection with the reallocation or split.
(b) The the Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer or Trustee applicable master servicer and trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event the Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 20, and funds received with respect to the Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Lead Trustee to pay itself from the Lead Securitization Trust’s general account then the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Lead Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Lead Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to the Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to the Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall provide the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) (provided such party is not also a party to the Note A-1 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2PSA to the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) provided such party is not also a party to the Note A-1 PSA.
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any the Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related master servicer under the Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to on a monthly basis on the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the applicable Master Servicer Remittance Date for the Non-Lead NoteDate;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subthe Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other Servicing Agreements as the parties to the Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, the Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the trustee for any prior Securitization a copy of the Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, Form 10-D and any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and (ii) upon request, any other materials specified in the related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee with respect to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shallServicers, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the Non-Lead SecuritizationServicing Agreement;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Agreement shall include the duty to service the Non-Lead Depositor Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(including, without limitation, providing all due diligence information, reports, written responses, negotiations vii) provide that the Master Servicer shall withdraw from the related Collection Account and coordination) remit to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) Holder of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor Note, within two (including reasonable legal fees and expenses 2) Business Days of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) properly identified funds, any amounts that represent late collections received by the Master Servicer from the Borrower that are allocable to a or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall any third party in accordance with this Agreement), unless such amount would otherwise be remitted by included in the Master Servicer monthly remittance to the Holder of such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereofNote for such month; 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 prepayments to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(xivx) if it shall not be amended in a manner that materially and adversely affects the Mortgage Loan becomes a Defaulted Mortgage Loan and rights of the Special Servicer determines to sell the Non-Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all Holder without their consent; and
(xi) satisfy ▇▇▇▇▇’▇ rating methodology as of the Notes as notes evidencing one whole loan in accordance with the terms closing date of the Lead Securitization related to permitted investments and eligible accounts applicable to securities rated “Aaa” by Moody’s;
(xii) provide that, in connection with (A) any amendment of the Servicing Agreement. In , a party to such Servicing Agreement is required to provide a copy of the executed amendment to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement (which may be by e-mail), together with a copy of such amendment in electronic format, no later than the effective date of such amendment, and (B) the termination, resignation and/or replacement of the Master Servicer or Special Servicer under the Servicing Agreement, the replacement “master servicer” or replacement “special servicer”, as applicable, is required to provide to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof;
(xiii) provide that “servicer termination events” (or any analogous term under the Servicing Agreement) include customary market termination events with respect to failure to make advances, failure to remit payments to the Non-Lead Note Holder as required, failure to deliver (or cause to be delivered) materials or information required in order for the Non-Lead Note Holder or the depositor under the Non-Lead Servicing Agreement to timely comply with its obligations under the Exchange Act, the Securities Act or Form SF-3, and for rating agency triggers with respect to any Certificates, subject to customary grace periods (provided that, in the case of failures related to the securities laws, such grace periods will not cause a depositor under the Non-Lead Servicing Agreement to fail to comply with the applicable provisions of such securities laws);
(xiv) provide that if the Non-Lead Note becomes the subject of an “asset review” under the Non-Lead Servicing Agreement, the applicable parties to the Servicing Agreement are required to reasonably cooperate with the related asset representations reviewer or other applicable party to the Non-Lead Servicing Agreement in connection with any such saleasset review, including with respect to providing access to related underlying documents to the Special Servicer extent the asset representations reviewer or such other applicable party to the Non-Lead Servicing Agreement has not obtained such documents from the Non- Lead Note Holder and such documents are in the possession of the applicable party to the Servicing Agreement; and
(xv) shall provide nothave provisions materially consistent with those set forth in the Model PSA with respect to:
(1) servicing transfer events that would result in the transfer of the Mortgage Loan to special servicing status;
(2) the authority of the servicers in the Note A-2 Securitization to grant or agree o
Appears in 1 contract
Provisions Relating to Securitization. (a) For so long as BSP or an Initial Note Holder or its Affiliate of BSP (an “Initial Note Holder EntityA-2 Holder”) is the owner of its Note(s)Note A-2, such Initial Note A-2 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New A-2 Notes”) reallocating the principal of its Note(s) Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing its Note(s) the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same weighted average interest rate as the original Note(s) Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity entity holding the New A-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Servicing Agreement and the applicable master servicer of such Securitization) Non-Lead Servicing Agreement in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all either of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)Note A-2, (2) if a Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(aSection 21(a). The Holder whose Note is being reallocated or split pursuant to this Section 21(a) shall reimburse the other Holder for all costs and expenses incurred by the other Holder in connection with the reallocation or split.
(b) The Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer or Trustee applicable master servicer and trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event the Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 20, and funds received with respect to the Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Lead Trustee to pay itself from the Lead Securitization Trust’s general account then the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Lead Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Lead Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to the Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to the Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall provide the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) (provided such party is not also a party to the Note A-1 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) provided such party is not also a party to the Note A-1 PSA.
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any the Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related master servicer under the Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to on a monthly basis on the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the applicable Master Servicer Remittance Date for the Non-Lead NoteDate;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subthe Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other Servicing Agreements as the parties to the Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, the Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the trustee for any prior Securitization a copy of the Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, Form 10-D and any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and (ii) upon request, any other materials specified in the related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee with respect to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shallServicers, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the Non-Lead SecuritizationServicing Agreement;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Agreement shall include the duty to service the Non-Lead Depositor Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(including, without limitation, providing all due diligence information, reports, written responses, negotiations vii) the Master Servicer shall withdraw from the related Collection Account and coordination) remit to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) Holder of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor Note, within two (including reasonable legal fees and expenses 2) Business Days of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) properly identified funds, any amounts that represent late collections received by the Master Servicer from the Borrower that are allocable to a or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall any third party in accordance with this Agreement), unless such amount would otherwise be remitted by included in the Master Servicer monthly remittance to the Holder of such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereofNote for such month; provided, however, that to the extent any such amounts are received after before 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections or principal prepayments to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(x) it shall not be amended in a manner that materially and adversely affects the rights of the Non-Lead Note Holder without their consent; and
(xi) satisfy ▇▇▇▇▇’▇ rating methodology as of the closing date of the Lead Securitization related to permitted investments and eligible accounts applicable to securities rated “Aaa” by Moody’s;
(xii) in connection with (A) any amendment of the Servicing Agreement, a party to such Servicing Agreement is required to provide a copy of the executed amendment to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement (which may be by e-mail), together with a copy of such amendment in electronic format, no later than the effective date of such amendment, and (B) the termination, resignation and/or replacement of the Master Servicer or Special Servicer under the Servicing Agreement, the replacement “master servicer” or replacement “special servicer”, as applicable, is required to provide to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof;
(xiii) “servicer termination events” (or any analogous term under the Servicing Agreement) include customary market termination events with respect to failure to make advances, failure to remit payments to the Non-Lead Note Holder as required, failure to deliver (or cause to be delivered) materials or information required in order for the Non-Lead Note Holder or the depositor under the Non-Lead Servicing Agreement to timely comply with its obligations under the Exchange Act, the Securities Act or Form SF-3, and for rating agency triggers with respect to any Certificates, subject to customary grace periods (provided that, in the case of failures related to the securities laws, such grace periods will not cause a depositor under the Non-Lead Servicing Agreement to fail to comply with the applicable provisions of such securities laws); and
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Non-Lead Note in accordance with becomes the subject of an “asset review” under the Non-Lead Securitization Servicing Agreement, it shall have the right applicable parties to the Servicing Agreement are required to reasonably cooperate with the related asset representations reviewer or other applicable party to the Non-Lead Servicing Agreement in connection with such asset review, including with respect to providing access to related underlying documents to the extent the asset representations reviewer or such other applicable party to the Non-Lead Servicing Agreement has not obtained such documents from the Non-Lead Note Holder and such documents are in the obligation to sell all possession of the Notes applicable party to the Servicing Agreement.
(e) If any provision required to be included in the Note A-2 PSA is not included therein as notes evidencing one whole loan required in accordance with the terms this Agreement, each Holder agrees that each such provision shall be deemed to be incorporated as a provision of and made a part of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notNote A-2 PSA.
Appears in 1 contract
Sources: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2021-C60)
Provisions Relating to Securitization. (a) For so long as BSP or an Initial Note Holder or its Affiliate of BSP (an “Initial Note Holder EntityA-2 Holder”) is the owner of its Note(s)Note A-2, such Initial Note A-2 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New A-2 Notes”) reallocating the principal of its Note(s) Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing its Note(s) the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same weighted average interest rate as the original Note(s) Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity entity holding the New A-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Servicing Agreement and the applicable master servicer of such Securitization) Non-Lead Servicing Agreement in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all either of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)Note A-2, (2) if a Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(aSection 21(a). The Holder whose Note is being reallocated or split pursuant to this Section 21(a) shall reimburse the other Holder for all costs and expenses incurred by the other Holder in connection with the reallocation or split.
(b) The Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer or Trustee applicable master servicer and trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event the Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 20, and funds received with respect to the Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Lead Trustee to pay itself from the Lead Securitization Trust’s general account then the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Lead Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Lead Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to the Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to the Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall provide the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) (provided such party is not also a party to the Note A-1 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) provided such party is not also a party to the Note A-1 PSA.
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any the Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related master servicer under the Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to on a monthly basis on the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the applicable Master Servicer Remittance Date for the Non-Lead NoteDate;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subthe Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other Servicing Agreements as the parties to the Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, the Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the trustee for any prior Securitization a copy of the Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, Form 10-D and any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and (ii) upon request, any other materials specified in the related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee with respect to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shallServicers, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the Non-Lead SecuritizationServicing Agreement;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Agreement shall include the duty to service the Non-Lead Depositor Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(including, without limitation, providing all due diligence information, reports, written responses, negotiations vii) the Master Servicer shall withdraw from the related Collection Account and coordination) remit to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) Holder of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor Note, within two (including reasonable legal fees and expenses 2) Business Days of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) properly identified funds, any amounts that represent late collections received by the Master Servicer from the Borrower that are allocable to a or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall any third party in accordance with this Agreement), unless such amount would otherwise be remitted by included in the Master Servicer monthly remittance to the Holder of such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereofNote for such month; 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 prepayments to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(x) it shall not be amended in a manner that materially and adversely affects the rights of the Non-Lead Note Holder without their consent; and
(xi) satisfy ▇▇▇▇▇’▇ rating methodology as of the closing date of the Lead Securitization related to permitted investments and eligible accounts applicable to securities rated “Aaa” by Moody’s;
(xii) in connection with (A) any amendment of the Servicing Agreement, a party to such Servicing Agreement is required to provide a copy of the executed amendment to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement (which may be by e-mail), together with a copy of such amendment in electronic format, no later than the effective date of such amendment, and (B) the termination, resignation and/or replacement of the Master Servicer or Special Servicer under the Servicing Agreement, the replacement “master servicer” or replacement “special servicer”, as applicable, is required to provide to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof;
(xiii) “servicer termination events” (or any analogous term under the Servicing Agreement) include customary market termination events with respect to failure to make advances, failure to remit payments to the Non-Lead Note Holder as required, failure to deliver (or cause to be delivered) materials or information required in order for the Non-Lead Note Holder or the depositor under the Non-Lead Servicing Agreement to timely comply with its obligations under the Exchange Act, the Securities Act or Form SF-3, and for rating agency triggers with respect to any Certificates, subject to customary grace periods (provided that, in the case of failures related to the securities laws, such grace periods will not cause a depositor under the Non-Lead Servicing Agreement to fail to comply with the applicable provisions of such securities laws);
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Non-Lead Note in accordance with becomes the subject of an “asset review” under the Non-Lead Securitization Servicing Agreement, it the applicable parties to the Servicing Agreement are required to reasonably cooperate with the related asset representations reviewer or other applicable party to the Non-Lead Servicing Agreement in connection with such asset review, including with respect to providing access to related underlying documents to the extent the asset representations reviewer or such other applicable party to the Non-Lead Servicing Agreement has not obtained such documents from the Non-Lead Note Holder and such documents are in the possession of the applicable party to the Servicing Agreement; and
(xv) shall have provisions materially consistent with those set forth in market-standard CMBS servicing agreements with respect to:
(1) servicing transfer events that would result in the right and the obligation to sell all transfer of the Notes as notes evidencing one whole loan in accordance with Mortgage Loan to special servicing status;
(2) the terms authority of the Lead servicers in the Note A-2 Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notto grant or
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Provisions Relating to Securitization. (a) For so long as Citi or an Initial Note Holder or its Affiliate of Citi (an the “Initial Note Holder EntityA-1 Holder”) is the owner of its Note(s)Note A-1, such the Initial Note A-1 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-1 Notes”) reallocating the principal of its Note(s) Note A-1 among other New A-1 Notes; reducing the Mortgage Interest Rates of such New A-1 Notes or severing its Note(s) the Note A-1 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1, provided that (i) the aggregate principal balance of the New A-1 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-1 prior to such amendments, (iii) all New A-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-1 Holder Entity holding the New A-1 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Note A-2 PSA, the Note A-3 PSA, the Note A-4 PSA and the applicable master servicer of such Securitization) Note A-5 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, any reduction of Mortgage Interest Rates or such severing of Note(s)Note A-1, (2) if a Note A-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The For so long as Citi or an Affiliate of Citi (the “Initial Note A-2 Holder”) is the owner of Note A-2, the Initial Note A-2 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of Note A-2 among other New A-2 Notes; reducing the Mortgage Interest Rates of such New A-2 Notes or severing the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the parties to the Note A-1 PSA, the Note A-3 PSA, the Note A-4 PSA and the Note A-5 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, any reduction of Mortgage Interest Rates or such severing of Note A-2, (2) if Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(b).
(c) For so long as Citi or an Affiliate of Citi (the “Initial Note A-3 Holder”) is the owner of Note A-3, the Initial Note A-3 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-3 Notes”) reallocating the principal of Note A-3 among other New A-3 Notes; reducing the Mortgage Interest Rates of such New A-3 Notes or severing the Note A-3 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-3, provided that (i) the aggregate principal balance of the New A-3 Notes following such amendments is no greater than the principal balance of Note A-3 prior to such amendments, (ii) all New A-3 Notes continue to have the same or a lower interest rate as the Note A-3 prior to such amendments, (iii) all New A-3 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-3 Holder holding the New A-3 Notes shall notify the parties to the Note A-1 PSA, the Note A-2 PSA, the Note A-4 PSA and the Note A-5 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, any reduction of Mortgage Interest Rates or such severing of Note A-3, (2) if Note A-3 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(c).
(d) For so long as UBSRES or an Affiliate of UBSRES (the “Initial Note A-4 Holder”) is the owner of Note A-4, the Initial Note A-4 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-4 Notes”) reallocating the principal of Note A-4 among other New A-4 Notes; reducing the Mortgage Interest Rates of such New A-4 Notes or severing the Note A-4 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-4, provided that (i) the aggregate principal balance of the New A-4 Notes following such amendments is no greater than the principal balance of Note A-4 prior to such amendments, (ii) all New A-4 Notes continue to have the same or a lower interest rate as the Note A-4 prior to such amendments, (iii) all New A-4 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-4 Holder holding the New A-4 Notes shall notify the parties to the Note A-1 PSA, the Note A-2 PSA, the Note A-3 PSA and the Note A-5 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, any reduction of Mortgage Interest Rates or such severing of Note A-4, (2) if Note A-4 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-4 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(d).
(e) For so long as UBSRES or an Affiliate of UBSRES (the “Initial Note A-5 Holder”) is the owner of Note A-5, the Initial Note A-5 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-5 Notes”) reallocating the principal of Note A-5 among other New A-5 Notes; reducing the Mortgage Interest Rates of such New A-5 Notes or severing the Note A-5 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-5, provided that (i) the aggregate principal balance of the New A-5 Notes following such amendments is no greater than the principal balance of Note A-5 prior to such amendments, (ii) all New A-5 Notes continue to have the same or a lower interest rate as the Note A-5 prior to such amendments, (iii) all New A-5 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-5 Holder holding the New A-5 Notes shall notify the parties to the Note A-1 PSA, the Note A-2 PSA, the Note A-3 PSA and the Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, any reduction of Mortgage Interest Rates or such severing of Note A-5, (2) if Note A-5 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-5 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(e).
(f) Each Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, Servicer with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or in electronic media) (and the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viivi) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viiivii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ixviii) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Securitization Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, and/or (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such partyrequired;
(ixviii) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notspecified
Appears in 1 contract
Sources: Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-C1)
Provisions Relating to Securitization. (a) For Subject to the terms of the Loan Agreement, for so long as Natixis or an Initial Note Holder or its Affiliate of Natixis (an the “Initial Note Holder EntityA-1 Holder”) is the owner of its Note(s)Note A-1, such the Initial Note A-1 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-1 Notes”) reallocating the principal of its Note(s) Note A-1 among other New A-1 Notes; reducing the Interest Rates of such New A-1 Notes or severing its Note(s) the Note A-1 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1, provided that (i) the aggregate principal balance of the New A-1 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-1 prior to such amendments, (iii) all New A-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-1 Holder Entity holding the New A-1 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee and the applicable master servicer of such Securitization) Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of Note(s)Note A-1, (2) if a Note A-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead For so long as Natixis or an Affiliate of Natixis (the “Initial Note A-2 Holder”) is the owner of Note A-2, the Initial Note A-2 Holder agrees that it shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same or a lower interest rate as the Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder holding the New A-2 Notes shall notify the parties to the Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-2, (2) if Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(b).
(c) For so long as Natixis or an Affiliate of Natixis (the “Initial Note A-3 Holder”) is the owner of Note A-3, the Initial Note A-3 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-3 Notes”) reallocating the principal of Note A-3 among other New A-3 Notes; reducing the Interest Rates of such New A-3 Notes or severing the Note A-3 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-3, provided that (i) the aggregate principal balance of the New A-3 Notes following such amendments is no greater than the principal balance of Note A-3 prior to such amendments, (ii) all New A-3 Notes continue to have the same or a lower interest rate as the Note A-3 prior to such amendments, (iii) all New A-3 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-3 Holder holding the New A-3 Notes shall notify the parties to the Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-3, (2) if Note A-3 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(c).
(d) Each Non-Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer or Trustee applicable master servicer and trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer applicable master servicer, special servicer or trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) in the Master Servicer shall remit all payments received with respect to any event such Non-Lead NoteNote Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, net of and that in the Servicing Fees and Special Servicing Fees payable to event that the Master Servicer and Special Servicer, as applicable, funds received with respect to such Non-Lead NoteNote are insufficient to cover such amounts, and any other applicable fees and reimbursements payable (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead NoteNote by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note Holder by the applicable Master Special Servicer Remittance Date for (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;and
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide be third party beneficiaries of the foregoing provisions.
(e) The Note A-1 Holder shall give each of the parties to the Master Servicer for provision by the Master Servicer) Note A-4 PSA (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other that will not also be a party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viiNote A-1 PSA) the servicing duties of each notice of the Master Servicer and Special Servicer under the Lead Note A-1 Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice writing (which may be by e-mail) in a timely manner (but no later not less than three (3) Business Days 5 business days’ prior to closing) the Note A-1 Securitization Date. Such notice shall contain contact information for each of the occurrence parties to the Note A-1 PSA and the identity of the Controlling Class Representative under such SecuritizationNote A-1 PSA. In addition, and (2) no later than one (1) Business Day following after the closing date of such SecuritizationNote A-1 Securitization Date, the Note A-1 Holder shall send a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) Note A-1 PSA to each of the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject parties to the right Note A-4 PSA.
(f) The Note A-2 Holder shall give each of the Master Servicer or parties to the Special Servicer, as Note A-4 PSA (that will not also be a party to the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost A-2 PSA) notice of the related Non-Lead Sponsor) (or, Note A-2 Securitization in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice writing (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later not less than three (3) Business Days 5 business days’ prior to the date Note A-2 Securitization Date. Such notice shall contain contact information for each of effectiveness of such amendment, and, on the date of effectiveness of such amendment parties to the Lead Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Servicing AgreementDate, provide the Note A-2 Holder shall send a copy of such amendment in an ▇▇▇▇▇-compatible format the Note A-2 PSA to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicerparties to the Note A-4 PSA.
(g) The Note A-3 Holder shall give each of the parties to the Note A-4 PSA (that will not also be a party to the Note A-3 PSA) notice of the Note A-3 Securitization in writing (which may be by e-mail) not less than 5 business days’ prior to the Note A-3 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-3 PSA and the identity of the Controlling Class Representative under such Note A-3 PSA. In addition, after the Note A-3 Securitization Date, the Special Servicer, Note A-3 Holder shall send a copy of the Custodian and Note A-3 PSA to each of the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) parties to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notA-4 PSA.
Appears in 1 contract
Sources: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2015-Nxs3)
Provisions Relating to Securitization. (a) For so long as RMF or an Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”) of RMF is the owner of its Note(s)Note A-2, such Initial the Note A-2 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of its Note(s) Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing its Note(s) the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder Entity holding the New A-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee and the applicable master servicer of such Securitization) Note A-1 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of Note(s)Note A-2, (2) if a Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Each Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and Trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event such Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, and that in the event that the funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating
(1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall give the Depositor, the Master Servicer and the Special Servicer under the Note A-1 PSA (provided such party is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties of the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA.
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within two Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect Trustee, to such the Non-Lead Note, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related each master servicer under a Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Noteon a monthly basis;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subany Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10-K, Form 10-D and 10D, Form 8-K), and (ii) upon request, any other materials specified in each of the related other Servicing Agreements as the parties to each Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required may require in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its their obligations under the Securities ActAct of 1933, the as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB AB, and Form SF-3 and (2) any other applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without law. Without limiting the generality of the foregoing (x) the foregoing, each Lead Depositor or the related Note Holder for a Lead Securitization shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days to the depositor and the Trustee for any prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, Securitization a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special each Lead Servicer (or any replacement Master Servicer or Special Servicer, as applicableat the expense of the Lead Note Holder) shallwill be required, upon reasonable prior written request, and subject to provide to the right of depositor and the Master Servicer or the Special Servicer, as the case may be, Trustee for any other Securitization any other information required to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained comply in a Lead Securitization timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), for inclusion in and, with respect to the disclosure materials Lead Servicers (or, in at the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization expense of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicablerequesting party), shall provide 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 Securitization. As used in this Agreement, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the United States Securities and Exchange Commission (the “Commission”) in each casethe adopting release (Asset-Backed Securities, at Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506,1,631 (Jan. 7, 2005)) or by the cost staff of the related Non-Lead Sponsor)Commission, and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which or as may be provided by e-mail) of such proposed amendment the Commission or its staff time to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteetime. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the related Non-Lead SecuritizationServicing Agreements;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with Agreement shall include the duty to service each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations Note on behalf of the related Trustees and coordination) to the same extent as such party is required to cooperate related Certificate holders in accordance with the Lead Depositor under Article X (or any article substantially similar thereto) terms and provisions of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing this Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xivii) any late collections received by the Master Servicer from the Borrower that are allocable to for which a P&I Advance has already been paid by a master servicer or trustee under a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee Servicing Agreement shall be remitted by the Master Servicer to such master servicer or Trustee under a Non-Lead Master Servicer Servicing Agreement, as applicable, within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an Holders are intended third-party beneficiary beneficiaries in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;; and
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide not.
Appears in 1 contract
Sources: Co Lender Agreement (CSAIL 2016-C5 Commercial Mortgage Trust)
Provisions Relating to Securitization. (a) New Notes. For so long as an Initial a Note is not included in a Securitization, the Holder or its Affiliate of such Note (an the “Initial Note Holder EntityResizing Holder”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes (“Amended Notes”) or additional notes (in either case “New Notes”) reallocating the principal of its Note(sthe Note or Notes that it owns (but in no case any Note that it does not then own) among Amended Notes and New Notes or severing its Note(s) a Note into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)the Note or Notes being amended or created, provided that (i) the aggregate principal balance of the Amended Notes and New Notes following such amendments is no greater than the principal balance of the related original Note(s) Amended Notes and New Notes prior to such amendments, (ii) all New Notes continue to have the same weighted average interest rate as the original Note(s) Amended Note of which it was a part prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis with the Amended Notes and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Resizing Holder Entity holding the New Notes shall notify the each other Holders (orHolder, for as applicable, and, if any other Note that has been contributed to included in a Securitizationsecuritization, to the trustee and the parties under each applicable master servicer of such Securitization) PSA, in writing (which may be by email) of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)a Note, (2) if a Note is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1Note, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New Notes and (4) if Note A-1 is severed into “component” notes, another note (or one of the New Notes) may be substituted for Note A-1 in the definition of “Directing Holder” and the definitions of “Lead Note” and “Lead Securitization” and “Non-Directing Holder” will be revised accordingly. Neither Rating Agency Confirmation nor approval of the Directing Holder shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph Section 18(a). The Resizing Holder whose Note is being reallocated or split pursuant to this Section 18(a) shall reimburse the other Holders for all costs and expenses incurred by the other Holders in connection with the reallocation or split.
(b) The Each Non-Lead Note Holder agrees that (unless the Non-Lead Note and the Lead Note are included in the same Securitization) it shall cause the Non-Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):follows:
(i) the Master Servicer applicable master servicer or Trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and Trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer applicable master servicer, special servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event the Non-Lead Note Holders are responsible for their proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17 and funds received with respect to such Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of the Trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(c) Notice to Parties to the Servicing Agreement.
(i) The Holder of the Lead Note shall provide the Depositor, the Servicer and the Special Servicer under the Non-Lead Servicing Agreement (as of the Note A-1 Securitization Date) (provided such party is not also a party to the Lead Securitization PSA) notice of the Lead Securitization in writing (which may be by email) prior to or promptly following the Note A-1 Securitization Date. Unless accompanied by the Lead Securitization PSA, such notice shall contain contact information for each of the parties to the Lead Securitization PSA and the identity of the Controlling Class Representative under such Lead Securitization PSA. In addition, after the Note A-1 Securitization Date, the Lead Note Holder shall send a copy of the Lead Securitization PSA to the Depositor, the Servicer and the Special Servicer under each Non-Lead Servicing Agreement (as of the Note A-1 Securitization Date) provided such party is not also a party to the Lead Securitization PSA.
(ii) Each Non-Lead Note Holder shall provide the Depositor, the Servicer, and the Special Servicer under the Lead Securitization PSA (as of the closing date of the related Securitization) (provided such party is not also a party to the Non-Lead Servicing Agreement) notice of the Securitization in writing (which may be by email) prior to or promptly following the closing date of the related Securitization. Such notice shall contain contact information for each of the parties to the Non-Lead Servicing Agreement and the identity of the Non-Directing Holders under the Securitization. In addition, after the closing date of the related Securitization, each Non-Lead Note Holder shall send a copy of the related Non-Lead Servicing Agreement to the Depositor, the Servicer, and the Special Servicer under the Lead Securitization PSA (provided such party is not also a party to such Non-Lead Servicing Agreement).
(d) The Lead Securitization PSA shall:
(i) provide that the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and Trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) provide that if the Master Servicer or Trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within two Business Days 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 nonrecoverabilitymade;
(iii) provide that the Master Servicer shall remit all payments received (or advanced) with respect to any Non-Lead NoteNote (other than any Non-Lead Note deposited into the Lead Securitization as to which payments shall be applied as provided in the Servicing Agreement), net of its Servicing Fee (calculated at the “primary servicing fee rate” as set forth in the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Agreement) and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect Trustee, to such the Non-Lead Note, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports provide that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related master servicer under a Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to on a monthly basis on the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the applicable Master Servicer Remittance Date for the Non-Lead NoteDate;
(viv) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special ServicerServicer and the Trustee for the Lead Securitization, the Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subany Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10-K, Form 10-D and D, Form 8-K), notices, and (ii) upon request, any other materials specified in each of the related other Servicing Agreements as the parties to each Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required may require in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its their obligations under the Securities ActAct of 1933, the as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB AB, and Form SF-3 any other applicable law and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without or its obligations with respect to any deficient Exchange Act receivable. Without limiting the generality of the foregoing (x) the foregoing, each Lead Depositor or the related Note Holder for a Lead Securitization shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, depositor and (2) no later than one (1) Business Day following the closing date of such Securitization, Trustee for any other Securitization a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, PSA and (y) the Master Servicer and Special each Lead Servicer (or any replacement Master Servicer or Special Servicer, as applicableat the expense of the Lead Note Holder) shall, upon reasonable prior written request, and subject will be required to provide to the right of depositor and the Master Servicer or the Special Servicer, as the case may be, Trustee for any other Securitization any other information required to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained comply in a Lead Securitization timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), for inclusion in and with respect to the disclosure materials (orLead Servicers, in the case of a replacement Special Servicerupon prior written request, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization. To the extent a Lead Servicer (or a primary or sub-servicer servicing the Mortgage Loan pursuant to the Servicing Agreement) is required by a Non-Lead Securitization (party to deliver disclosure information pursuant to Regulation AB in each casea future Securitization and, at if such Lead Servicer is not also the cost of Non-Lead Master Servicer, the applicable special servicer or other party to the related Non-Lead Sponsor)Servicing Agreement, and (c) or a primary servicer who is a servicing function participant, or an Affiliate of the Mortgage Loan Seller or material relationship in connection with any amendment such future Securitization, and therefore is not already providing such information in connection with the future Securitization, the Mortgage Loan Seller shall be responsible for costs related to compliance with the related requirements of Regulation AB. 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 Lead Securitization Servicing AgreementCommission, the party requesting such amendment shall provide written notice (which or as may be provided by e-mail) the Commission or its staff from time to time, in each case as effective from time to time as of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer and Servicer, any primary servicer, the Special Servicer and each other applicable party to the Servicing Agreement shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable ▇the S▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the related Non-Lead SecuritizationServicing Agreements;
(xvi) provide that the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable SubServicing Agreement shall include the duty to service the Non-Lead Notes on behalf of the related Note Holders (including the related Trustees and related Certificate holders) in accordance with the terms and provisions of this Agreement and that any conflict between the Servicing Agreement and this Agreement shall be resolved in favor of this Agreement;
(vii) provide that, with respect to any/each Non-Lead Note (other than any Non-Lead Note deposited into the Lead Securitization as to which payments shall be withdrawn and remitted as provided in the Servicing Agreement), with each the Master Servicer shall withdraw from the related Collection Account and remit to the Holder of the Non-Lead Depositor (includingNote, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified and identification thereofavailable funds, any amounts that represent late collections or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to any third party in accordance with this Agreement), unless such amount would otherwise be included in the monthly remittance to the Holder of such Non-Lead Note for such month; provided, however, that to the extent any such amounts are received 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 prepayments to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified and available funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each provide that the Non-Lead Note Holders (other than any Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notwhich
Appears in 1 contract
Provisions Relating to Securitization. (a) For so long as GACC or an Affiliate of GACC (the "Initial Note Holder or its Affiliate (an “Initial Note Holder Entity”A-1 Holder") is the owner of its Note(s)Note A-1, such the Initial Note A-1 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “"New A‑1 Notes”") reallocating the principal of its Note(s) Note A-1 among other New A-1 Notes; reducing the Interest Rates of such New A-1 Notes or severing its Note(s) the Note A-1 into one or more further “"component” " notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1, provided that (i) the aggregate principal balance of the New A-1 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-1 prior to such amendments, (iii) all New A‑1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and and
(iv) the Initial Note A-1 Holder Entity holding the New A‑1 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Note A-2 PSA and the applicable master servicer of such Securitization) Note A-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of Note(s)Note A-1, (2) if a Note A-1 is severed into “"component” " notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “"Securitization” " and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):
(i) 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 P&I Advance it has made with respect to the Lead Note within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide each 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;
(iii) the Master Servicer shall remit all payments received with respect to any Non-Lead Note, net of the Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead Note, to the related Non-Lead Note Holder by the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide not
Appears in 1 contract
Sources: Co Lender Agreement (COMM 2015-Ccre25 Mortgage Trust)
Provisions Relating to Securitization. (a) For so long as an Initial The Note A-2 Holder or its Affiliate (an “Initial Note Holder Entity”) is the owner of its Note(s), such Initial Note Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New A-2 Notes”) reallocating the principal of its Note(s) Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing its Note(s) the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same weighted average interest rate as the original Note(s) Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note Holder Entity entity holding the New A-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Servicing Agreement and the applicable master servicer of such Securitization) Non-Lead Servicing Agreement in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all either of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)Note A-2, (2) if a Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(aSection 21(a). The Holder whose Note is being reallocated or split pursuant to this Section 21(a) shall reimburse the other Holder for all costs and expenses incurred by the other Holder in connection with the reallocation or split.
(b) The Non-Lead Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer or Trustee applicable master servicer and trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event the Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 20, and funds received with respect to the Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Lead Trustee to pay itself from the Lead Securitization Trust’s general account then the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Lead Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Lead Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to the Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to the Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-2 Holder shall provide the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) (provided such party is not also a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by email) prior to or promptly following the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-2 PSA and the identity of the Controlling Class Representative under such Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to the Depositor, the Servicer and the Special Servicer under the Note A-1 PSA (as of the Note A-2 Securitization Date) (provided such party is not also a party to the Note A-2 PSA).
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any the Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date;
(iv) the Master Servicer agrees to make available to the master servicer under the Non-Lead Servicing Agreement the CREFC® Investor Reporting Package® pursuant to the terms of the Servicing Agreement on a monthly basis on the applicable Master Servicer Remittance Date for so long as the Non-Lead Note; provided, that any late collections received by the Master Servicer date on which delivery is required under this clause (iv) is at least one (1) Business Day after the related due scheduled Monthly Payment date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead SecuritizationAgreement;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subthe Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other Servicing Agreements as the parties to the Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, the Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the trustee for any prior Securitization a copy of the Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, Form 10-D and any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and (ii) upon request, any other materials specified in the related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee with respect to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shallServicers, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the Non-Lead SecuritizationServicing Agreement;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Agreement shall include the duty to service the Non-Lead Depositor Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(including, without limitation, providing all due diligence information, reports, written responses, negotiations vii) the Master Servicer shall withdraw from the related Collection Account and coordination) remit to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) Holder of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor Note, within two (including reasonable legal fees and expenses 2) Business Days of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) properly identified funds, any amounts that represent late collections received by the Master Servicer from the Borrower that are allocable to a or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall any third party in accordance with this Agreement), unless such amount would otherwise be remitted by included in the Master Servicer monthly remittance to the Holder of such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereofNote for such month; provided, however, that to the extent any such amounts are received after before 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections or principal prepayments to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(x) it shall not be amended in a manner that materially and adversely affects the rights of the Non-Lead Note Holder without their consent;
(xi) satisfy ▇▇▇▇▇’▇ rating methodology as of the closing date of the Lead Securitization related to permitted investments and eligible accounts applicable to securities rated “Aaa” by ▇▇▇▇▇’▇;
(xii) in connection with (A) any amendment of the Servicing Agreement, a party to such Servicing Agreement is required to provide a copy of the executed amendment to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement (which may be by e-mail), together with a copy of such amendment in electronic format, no later than the effective date of such amendment, and (B) the termination, resignation and/or replacement of the Master Servicer or Special Servicer under the Servicing Agreement, the replacement “master servicer” or replacement “special servicer”, as applicable, is required to provide to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof;
(xiii) “servicer termination events” (or any analogous term under the Servicing Agreement) include customary market termination events with respect to failure to make advances, failure to remit payments to the Non-Lead Note Holder as required, failure to deliver (or cause to be delivered) materials or information required in order for the Non-Lead Note Holder or the depositor under the Non-Lead Servicing Agreement to timely comply with its obligations under the Exchange Act, the Securities Act or Form SF-3, and for rating agency triggers with respect to any Certificates, subject to customary grace periods (provided that, in the case of failures related to the securities laws, such grace periods will not cause a depositor under the Non-Lead Servicing Agreement to fail to comply with the applicable provisions of such securities laws); and
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Non-Lead Note in accordance with becomes the subject of an “asset review” under the Non-Lead Securitization Servicing Agreement, it shall have the right applicable parties to the Servicing Agreement are required to reasonably cooperate with the related asset representations reviewer or other applicable party to the Non-Lead Servicing Agreement in connection with such asset review, including with respect to providing access to related underlying documents to the extent the asset representations reviewer or such other applicable party to the Non-Lead Servicing Agreement has not obtained such documents from the Non-Lead Note Holder and such documents are in the obligation to sell all possession of the Notes applicable party to the Servicing Agreement.
(e) If any provision required to be included in the Note A-1 PSA or the Note A-2 PSA is not included therein as notes evidencing one whole loan required in accordance with the terms this Agreement, each Holder agrees that each such provision shall be deemed to be incorporated as a provision of and made a part of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide not
Appears in 1 contract
Sources: Co Lender Agreement (BBCMS Mortgage Trust 2022-C14)
Provisions Relating to Securitization. (a) For so long as GACC or an Initial Note Holder or its Affiliate of GACC (an the “Initial Note Holder EntityA-2 Holder”) is the owner of its Note(s)Note A-2, such the Initial Note A-2 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-2 Notes”) reallocating the principal of its Note(s) Note A-2 among other New A-2 Notes; reducing the Interest Rates of such New A-2 Notes or severing its Note(s) the Note A-2 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-2, provided that (i) the aggregate principal balance of the New A-2 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-2 prior to such amendments, (ii) all New A-2 Notes continue to have the same weighted average or a lower interest rate as the original Note(s) Note A-2 prior to such amendments, (iii) all New A-2 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-2 Holder Entity holding the New A-2 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee Note A-1 PSA and the applicable master servicer of such Securitization) Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal principal, reduction of Interest Rates or such severing of Note(s)Note A-2, (2) if a Note A-2 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-2 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(b) The Lead For so long as GACC or an Affiliate of GACC (the “Initial Note A-3 Holder”) is the owner of Note A-3, the Initial Note A-3 Holder agrees that it shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-3 Notes”) reallocating the principal of Note A-3 among other New A-3 Notes; reducing the Interest Rates of such New A-3 Notes or severing the Note A-3 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-3, provided that (i) the aggregate principal balance of the New A-3 Notes following such amendments is no greater than the principal balance of Note A-3 prior to such amendments, (ii) all New A-3 Notes continue to have the same or a lower interest rate as the Note A-3 prior to such amendments, (iii) all New A-3 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-3 Holder holding the New A-3 Notes shall notify the parties to the Note A-1 PSA and the Note A-3 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-3, (2) if Note A-3 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-3 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(a).
(c) For so long as GACC or an Affiliate of GACC (the “Initial Note A-4 Holder”) is the owner of Note A-4, the Initial Note A-4 Holder shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case “New A-4 Notes”) reallocating the principal of Note A-4 among other New A-4 Notes; reducing the Interest Rates of such New A-4 Notes or severing the Note A-4 into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of Note A-4, provided that (i) the aggregate principal balance of the New A-4 Notes following such amendments is no greater than the principal balance of Note A-4 prior to such amendments, (ii) all New A-4 Notes continue to have the same or a lower interest rate as the Note A-4 prior to such amendments, (iii) all New A-4 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-4 Holder holding the New A-4 Notes shall notify the parties to the Note A-1 PSA and the Note A-4 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Holders solely for the purpose of reflecting such reallocation of principal, reduction of Interest Rates or such severing of Note A-4, (2) if Note A-4 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-4 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(b).
(d) Each Non-Lead Securitization Servicing Agreement to shall provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):that:
(i) the Master Servicer applicable master servicer or Trustee trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Lead Note included in such Securitization within two (2) Business Days of making such advance;
(ii) if the Master Servicer applicable master servicer, special servicer or trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer master servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) in the Master Servicer shall remit all payments received with respect to any event such Non-Lead NoteNote Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 17, net of and that in the Servicing Fees and Special Servicing Fees payable to event that the Master Servicer and Special Servicer, as applicable, funds received with respect to such Non-Lead NoteNote are insufficient to cover such amounts, and any other applicable fees and reimbursements payable (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Trustee under the Servicing Agreement to pay itself from the Lead Securitization Trust’s general account then the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust Fund out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with the any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the related Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead NoteNote by the Master Servicer or the Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the related Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note Holder by the applicable Master Special Servicer Remittance Date for (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) below;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement to the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the Master Servicer Remittance Date for the Non-Lead Note;and
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide be third party beneficiaries of the foregoing provisions.
(e) The Note A-2 Holder shall give each of the parties to the Master Servicer for provision by the Master Servicer) Note A-1 PSA (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other that will not also be a party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(viiNote A-2 PSA) the servicing duties of each notice of the Master Servicer and Special Servicer under the Lead Note A-2 Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the 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; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and 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 related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice writing (which may be by e-mail) in a timely manner (but no later not less than three (3) Business Days 5 business days’ prior to closing) the Note A-2 Securitization Date. Such notice shall contain contact information for each of the occurrence parties to the Note A-2 PSA and the identity of the Controlling Class Representative under such SecuritizationNote A-2 PSA. In addition, and (2) no later than one (1) Business Day following after the closing date of such SecuritizationNote A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) Note A-2 PSA to each of the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shall, upon reasonable prior written request, and subject parties to the right Note A-1 PSA.
(f) The Note A-3 Holder shall give each of the Master Servicer or parties to the Special Servicer, as Note A-1 PSA (that will not also be a party to the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost A-3 PSA) notice of the related Non-Lead Sponsor) (or, Note A-3 Securitization in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice writing (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later not less than three (3) Business Days 5 business days’ prior to the date Note A-3 Securitization Date. Such notice shall contain contact information for each of effectiveness of such amendment, and, on the date of effectiveness of such amendment parties to the Lead Note A-3 PSA and the identity of the Controlling Class Representative under such Note A-3 PSA. In addition, after the Note A-3 Securitization Servicing AgreementDate, provide the Note A-3 Holder shall send a copy of such amendment in an ▇▇▇▇▇-compatible format the Note A-3 PSA to such Non-Lead Depositor and the related Non-Lead Trustee. The Master Servicer and the Special Servicer shall each be required to provide certification and indemnification to any “certifying party” with respect to any applicable ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a Non-Lead Securitization;
(x) each of the Master Servicerparties to the Note A-1 PSA.
(g) The Note A-4 Holder shall give each of the parties to the Note A-1/A-2 PSA (that will not also be a party to the Note A-4 PSA) notice of the Note A-4 Securitization in writing (which may be by e-mail) not less than 5 business days’ prior to the Note A-4 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-4 PSA and the identity of the Controlling Class Representative under such Note A-4 PSA. In addition, after the Note A-4 Securitization Date, the Special Servicer, Note A-4 Holder shall send a copy of the Custodian and Note A-4 PSA to each of the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) parties to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) any late collections received by the Master Servicer from the Borrower that are allocable to a Non-Lead Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereof; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xii) each Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related Non-Lead Master Servicer will be entitled to enforce the rights of such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiii) each Non-Lead Master Servicer and each Non-Lead Special Servicer shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or such Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notA-4 PSA.
Appears in 1 contract
Sources: Co Lender Agreement (COMM 2015-Ccre26 Mortgage Trust)
Provisions Relating to Securitization. (a)
(a) For so long as BSP or an Initial Note Holder or its Affiliate of BSP (an “Initial Note Holder EntityA-1 Holder”) is the owner of its Note(s)Note A-1, such Initial Note A-1 Holder Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case case, the “New A-1 Notes”) reallocating the principal of its Note(s) Note A-1 among other New A-1 Notes; reducing the Interest Rates of such New A-1 Notes or severing its Note(s) the Note A-1 into one or more further “component” notes in the aggregate principal amount equal to the then-then outstanding principal balance of its Note(s)Note A-1, provided that (i) the aggregate principal balance of the Amended A-1 Notes and New A-1 Notes following such amendments is no greater than the principal balance of the related original Note(s) Note A-1 prior to such amendments, (ii) all New A-1 Notes continue to have the same weighted average interest rate as the original Note(s) Note A-1 prior to such amendments, (iii) all New A-1 Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement and (iv) the Initial Note A-1 Holder Entity holding the New A-1 Notes shall notify the other Holders (or, for any Note that has been contributed to a Securitization, parties to the trustee and the applicable master servicer of such Securitization) Note A-2 PSA in writing of such modified allocations and principal amounts. In connection with the foregoing, (1) the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all either of the Holders solely for the purpose of reflecting such reallocation of principal or such severing of Note(s)Note A-1, (2) if a Note A-1 is severed into “component” notes, such component notes shall each have their same rights as the respective original Note (except if such original Note is Note A-1, then the applicable Initial Note Holder shall designate one of the New Notes to take the place of Note A-1 in the definitions of “Directing Holder”, “Lead Note”, “Lead Securitization”, “Non-Directing Holder” and “Servicing Agreement”), and (3) the definition of the term “Securitization” and all of the related defined terms may be amended (and new terms added, as necessary) to reflect the New A-1 Notes. Rating Agency Confirmation shall not be required for any amendments to this Agreement required to facilitate the terms of this paragraph 18(aSection 21(a). The Initial Note A-1 Holder whose Note is being reallocated or split pursuant to this Section 21(a) shall reimburse the other Holder for all costs and expenses incurred by the other Holder in connection with the reallocation or split. If a New A-1 Note is created out of the Lead Note the Initial Note A-1 Holder shall designate which Note will be the Lead Securitization Note hereunder.
(b) The Non-Lead Note Holder agrees that (if the Non-Lead Note is included in a Securitization other than the Lead Securitization) it shall cause the Non-Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):follows:
(i) the Master Servicer or Trustee applicable master servicer and trustee for such Securitization shall be required to provide written notice to notify the master servicer, special servicer and trustee of each Non-Lead Master Servicer and each Non-Lead Trustee other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the applicable master servicer, special servicer or trustee determines that a proposed P&I Advance, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the master servicer shall provide the other servicers written notice of such determination within 2 Business Days after such determination was made;
(iii) in the event the Non-Lead Note within two Holder is responsible for its proportionate share of any Nonrecoverable Advances (or any other portion of a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense pursuant to Section 20, and funds received with respect to the Non-Lead Note are insufficient to cover such amounts, (x) the related master servicer will be required to pay the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement and (y) if the Lead Servicing Agreement permits the Master Servicer, Special Servicer or Lead Trustee to pay itself from the Lead Securitization Trust’s general account then the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iv) each of the Master Servicer and the Special Servicer shall be indemnified (as and to the extent the Lead Securitization Trust is required to indemnify each such party) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA that relate solely to its servicing of the Mortgage Loan, as applicable, and the master servicer under the Non-Lead Servicing Agreement will be required to reimburse the Master Servicer, Special Servicer or Lead Trustee under the Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(v) each of trustee and the master servicer under the Non-Lead Servicing Agreement, as applicable, shall acknowledge that, (i) each of the Master Servicer and the Lead Trustee under the Servicing Agreement will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to such Non-Lead Note by the Master Servicer or the Lead Trustee under the Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to the Non-Lead Note and (ii) the Special Servicer will be a third party beneficiary under the Non-Lead Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any nonrecoverable advances made with respect to the Non-Lead Note by the Special Servicer (it being understood that the Special Servicer is not required to make any Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any PSA and relating to such Non-Lead Note; and
(vi) the Master Servicer and the Special Servicer shall be third party beneficiaries of the foregoing provisions.
(c) The Note A-1 Holder shall provide the Depositor, the Servicer and the Special Servicer under the Note A-2 PSA (as of the Note A-1 Securitization Date) (provided such party is not also a party to the Note A-1 PSA) notice of the Note A-1 Securitization in writing (which may be by email) prior to or promptly following the Note A-1 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-1 PSA and the identity of the Controlling Class Representative under such Note A-1 PSA. In addition, after the Note A-1 Securitization Date, the Note A-1 Holder shall send a copy of the Note A-1 PSA to the Depositor, the Servicer and the Special Servicer under the Note A-2 PSA (as of the Note A-1 Securitization Date) provided such party is not also a party to the Note A-2 PSA.
(d) The Note A-1 PSA shall provide that:
(i) the Master Servicer and Trustee for such Securitization shall be required to notify the servicer, special servicer and trustee of each other Securitization of the amount of any P&I Advance it has made with respect to the Note included in such Securitization within two Business Days of making such advance;
(ii) if the Master Servicer or Trustee determines that a proposed P&I Advance with respect to the Lead Note or Property Advance with respect to the Mortgage LoanAdvance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a Nonrecoverable Advancenonrecoverable advance, the Master Servicer shall provide each Non-Lead Master Servicer the other servicers written notice of such determination promptly within 2 Business Days 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 nonrecoverabilitymade;
(iii) the Master Servicer shall remit all payments received (or advanced) with respect to any the Non-Lead Note, net of the its Servicing Fees and Special Servicing Fees payable to the Master Servicer and Special Servicer, as applicable, with respect to such Non-Lead Note, Fee and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee with respect to such Non-Lead NoteTrustee, to the related Non-Lead Note Holder by on the applicable Master Servicer Remittance Date for the Non-Lead Note; provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with Section 18(b)(xi) belowDate;
(iv) in connection with the expedited remittances contemplated by the preceding clause (iii) and the expedited reporting contemplated by the following clause (v), (A) the Special Servicer shall (x) expedite its delivery of reports to the Master Servicer with respect to the Mortgage Loan or the Mortgaged Property (including the delivery of information contemplated by CREFC® reports that the Special Servicer is required to deliver to the Master Servicer) so that the reports (including CREFC® reports) provided by the Master Servicer to each Non-Lead Securitization Note Holder may include all information contemplated to be included therein for the applicable reporting period, and (y) expedite withdrawals from accounts maintained by it and remittances to the Master Servicer in respect of the Mortgage Loan or the Mortgaged Property so that the Master Servicer’s remittances to each Non-Lead Securitization Note Holder contemplated by the preceding clause (iii) may include all amounts for the applicable collection period, and (B) each party responsible under the Lead Securitization Servicing Agreement for delivering any Additional Form 10-D Disclosure to a Non-Lead Trustee or Non-Lead Depositor in respect of a Non-Lead Securitization Note shall deliver such Additional Form 10-D Disclosure no later than the 5th calendar day following the following the distribution date for the related Non-Lead Securitization;
(v) with respect to any Non-Lead Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or make available to the related master servicer under the Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) Package® pursuant to the terms of the Lead Securitization Servicing Agreement to on a monthly basis on the extent related to the Mortgage Loan, the Mortgaged Property, such Non-Lead Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee by the Business Day following the applicable Master Servicer Remittance Date for the Non-Lead NoteDate;
(vi) the Master Servicer and Special Servicer, as applicable, shall provide (or the Special Servicer shall provide to the Master Servicer for provision by the Master Servicer) (in electronic media) to each Non-Lead Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan provided by it to any other party to the Lead Securitization Servicing Agreement at the time provided to such other party;
(vii) the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and the Servicing Standard;
(viii) each Non-Lead Note Holder shall be entitled to the same indemnity as the Lead Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, any primary servicer and the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each “certification party” and the depositor of any public Securitization Trust, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each “certifying party” for (i) its failure to deliver the items in clause (ix) below in a timely manner, (ii) its failure to perform its obligations to such depositor or the related Non-Lead Trustee under Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (av) the Master Servicer, any primary servicer, the Special Servicer, Servicer and the Lead Trustee, the Certificate Administrator 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; provided that such party shall only be required ), to use commercially reasonable efforts the parties to cause a Mortgage Loan Seller Subthe Non-Servicer to deliver)Lead Servicing Agreement, at its own expense, in a timely manner (i) manner, the reports, certifications, compliance statements, accountants’ assessments and attestations, and information to be included in reports (including, without limitation, Form ABS-1515G, Form 10K, Form 10D, Form 8K), and other materials specified in each of the other Servicing Agreements as the parties to the Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law. Without limiting the generality of the foregoing, the Lead Note Holder for a Lead Securitization shall provide in a timely manner to the depositor and the trustee for any prior Securitization a copy of the Servicing Agreement and each Lead Servicer (at the expense of the Lead Note Holder) will be required, upon prior written request, to provide to the depositor and the trustee for any prior Securitization any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, Form 10-D and any other disclosure information required pursuant to Regulation AB in a timely manner for inclusion in any disclosure document (and, with respect to the Servicing Agreement, for filing under Form 8-K), and (ii) upon request, any other materials specified in the related Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the related Non-Lead Depositor or the related Non-Lead Trustee reasonably believes, in good faith, are required in order for the related Non-Lead Depositor or the related Non-Lead Trustee with respect to comply with (1) its obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (2) any applicable comment letter from the United States Securities and Exchange Commission (the “Commission”), (b) without limiting the generality of the foregoing (x) the Lead Depositor or the related Holder shall provide or cause to be provided to any related Non-Lead Depositor and any Non-Lead Trustee (1) written notice (which may be by e-mail) in a timely manner (but no later than three (3) Business Days prior to closing) of the occurrence of such Securitization, and (2) no later than one (1) Business Day following the closing date of such Securitization, a copy of the Lead Securitization Servicing Agreement in an ▇▇▇▇▇-compatible format, and (y) the Master Servicer and Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable) shallServicers, upon reasonable prior written request, and subject to the right of the Master Servicer or the Special Servicer, as the case may be, to review and approve such disclosure materials, permit a holder of any Non-Lead Note to use such party’s description contained in the Lead Securitization prospectus (updated as appropriate by the Master Servicer or Special Servicer, as applicable, at the cost of the related Non-Lead Sponsor) (or, in the case of a replacement Special Servicer, contained in a Lead Securitization Form 8-K), for inclusion in the disclosure materials (or, in the case of a replacement Special Servicer, for inclusion in a Form 8-K) relating to any securitization of the related Non-Lead Note, and (z) the Master Servicer and the Special Servicer (or any replacement Master Servicer or Special Servicer, as applicable), shall provide market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization 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, at the cost case as effective from time to time as of the related Non-Lead Sponsor), and (c) in connection with any amendment of the Lead Securitization Servicing Agreement, the party requesting such amendment shall provide written notice (which may be by e-mail) of such proposed amendment to any Non-Lead Depositor and the related Non-Lead Trustee no later than three (3) Business Days prior to the date of effectiveness of such amendment, and, on the date of effectiveness of such amendment to the Lead Securitization Servicing Agreement, provide a copy of such amendment in an ▇▇▇▇▇-compatible format to such Non-Lead Depositor and the related Non-Lead Trusteecompliance dates specified therein. The Master Servicer Servicer, any primary servicer and the Special Servicer Servicer, upon prior written request, shall each be required to provide certification and indemnification to any “certifying party” each Certifying Person with respect to any applicable the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification with respect to a (or analogous terms) as such terms are defined in the Non-Lead SecuritizationServicing Agreement;
(xvi) the servicing duties of each of the Master Servicer, the Servicer and Special Servicer, the Custodian and the Trustee and each Affected Reporting Party shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with each Agreement shall include the duty to service the Non-Lead Depositor Note on behalf of the related Trustees and related Certificate holders in accordance with the terms and provisions of this Agreement;
(including, without limitation, providing all due diligence information, reports, written responses, negotiations vii) the Master Servicer shall withdraw from the related Collection Account and coordination) remit to the same extent as such party is required to cooperate with the Lead Depositor under Article X (or any article substantially similar thereto) Holder of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by any Non-Lead Depositor Note, within two (including reasonable legal fees and expenses 2) Business Days of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by such Non-Lead Depositor in any telephone conferences and meetings with the Commission and other costs such Non-Lead Depositor must bear pursuant to Article X (or any article substantially similar thereto) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;
(xi) properly identified funds, any amounts that represent late collections received by the Master Servicer from the Borrower that are allocable to a or principal prepayments on such Non-Lead Note or any successor REO Property with respect thereto (exclusive of any portion of such amount payable or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall any third party in accordance with this Agreement), unless such amount would otherwise be remitted by included in the Master Servicer monthly remittance to the Holder of such Non-Lead Master Servicer within one (1) Business Day of receipt and identification thereofNote for such month; 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 prepayments to such the Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;
(xiiviii) each the Non-Lead Note Holder is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement and the related each master servicer under a Non-Lead Master Servicer Servicing Agreement will be entitled to enforce the rights of the related Trustee with respect to such Non-Lead Note Holder under this Agreement and the Lead Securitization Servicing Agreement;
(xiiiix) each master servicer and special servicer under any Non-Lead Master Servicer and each Non-Lead Special Servicer Servicing Agreement shall each be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer master servicer or such Non-Lead Special Servicerspecial servicer, as the case may be, and the provisions regarding coordination of Advances;
(x) it shall not be amended in a manner that materially and adversely affects the rights of the Non-Lead Note Holder without their consent; and
(xi) satisfy ▇▇▇▇▇’▇ rating methodology as of the closing date of the Lead Securitization related to permitted investments and eligible accounts applicable to securities rated “Aaa” by ▇▇▇▇▇’▇;
(xii) in connection with (A) any amendment of the Servicing Agreement, a party to such Servicing Agreement is required to provide a copy of the executed amendment to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement (which may be by e-mail), together with a copy of such amendment in electronic format, no later than the effective date of such amendment, and (B) the termination, resignation and/or replacement of the Master Servicer or Special Servicer under the Servicing Agreement, the replacement “master servicer” or replacement “special servicer”, as applicable, is required to provide to the depositor under the Non-Lead Servicing Agreement and one or more parties to the related Non-Lead Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof;
(xiii) “servicer termination events” (or any analogous term under the Servicing Agreement) include customary market termination events with respect to failure to make advances, failure to remit payments to the Non-Lead Note Holder as required, failure to deliver (or cause to be delivered) materials or information required in order for the Non-Lead Note Holder or the depositor under the Non-Lead Servicing Agreement to timely comply with its obligations under the Exchange Act, the Securities Act or Form SF-3, and for rating agency triggers with respect to any Certificates, subject to customary grace periods (provided that, in the case of failures related to the securities laws, such grace periods will not cause a depositor under the Non-Lead Servicing Agreement to fail to comply with the applicable provisions of such securities laws);
(xiv) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Non-Lead Note in accordance with becomes the subject of an “asset review” under the Non-Lead Securitization Servicing Agreement, the applicable parties to the Servicing Agreement are required to reasonably cooperate with the related asset representations reviewer or other applicable party to the Non-Lead Servicing Agreement in connection with such asset review, including with respect to providing access to related underlying documents to the extent the asset representations reviewer or such other applicable party to the Non-Lead Servicing Agreement has not obtained such documents from the Non-Lead Note Holder and such documents are in the possession of the applicable party to the Servicing Agreement; and
(xv) it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notprovisio
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Sources: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2019-C54)