bcr20c08_991.htm - Generated by SEC Publisher for SEC Filing
Second amended and restated SERVICING
AGREEMENT
This SECOND AMENDED AND RESTATED SERVICING AGREEMENT,
effective as of October 31, 2021 (including the Exhibit and Annexes attached
hereto, this “Agreement”), among Wells Fargo Bank, N.A. (“Wells Bank”)
and Wells Fargo Delaware Trust Company, N.A. (“Wells Trust Company,” and
together with Wells Bank, the “Sellers” and each, a “Seller”),
Computershare Trust Company, N.A. (the “Bank Assets Purchaser”) and,
upon execution of the Joinder Agreement, the Delaware Trust Assets Purchaser
(together with the Bank Assets Purchaser, the “Purchasers” and each, a
“Purchaser”),
and Computershare Limited (“Guarantor”) (solely for purposes of Section
9.5).
1.
General Summary
1.1
Servicing Agreement General Summary. The Sellers and the
Purchasers intend this Agreement to amend and restate that certain “Servicing
Agreement,” dated March 23, 2021, for purposes of the Purchase Agreement and
wish to set forth herein the terms upon which each Purchaser will, to the
fullest extent permitted by applicable Law and the applicable Corporate Trust
Contract, and subject to the applicable provisions of this Agreement, assume
the responsibility (as agent of the applicable Seller) to supervise, manage, administer
and otherwise discharge the duties of the applicable Seller in a Corporate
Trust Capacity under (a) any Restricted Appointment and (b) any Excluded
Appointment (collectively, the “Serviced Appointments”), and the
Purchasers will discharge and perform when due, and indemnify the Sellers for,
the Assumed Servicing Liabilities.
1.2
Effective Time. This Agreement shall be effective as of the
Closing Date, subject to the consummation of the Closing in accordance with the
Purchase Agreement. In the event of termination of the Purchase Agreement prior
to the Closing, this Agreement shall be deemed abandoned and shall
automatically terminate and have no further force and effect. No party shall
have any obligation to any other party under this Agreement unless and until
the Closing occurs.
2.
Interpretation
2.1
Defined Terms. In this Agreement, the following terms have
the meanings set forth below:
“Administrative
Requirement” means any required notice, filing or other similar
administrative requirements (other than any requirement for Consent or any
Eligibility Requirements) for the Transfer of any Appointment to the applicable
Purchaser as set forth in the related Corporate Trust Contract.
“Affiliate”
(including, with correlative meanings, “Affiliated”) means, with respect
to any person, any other person that directly or indirectly controls, is
controlled by, or is under common control with, such person. As used in this
definition, the term “controls” (including the terms “controlled by”
and “under common control with”) means possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a person, whether through ownership of voting securities, by
contract or otherwise.
“Appointed
Trustee” means each person acting in a Corporate Trust Capacity under each
applicable Corporate Trust Contract.
“Appointment”
means the appointment of any Seller to act in a Corporate Trust Capacity under
any of the Corporate Trust Contracts of the Business.
“Appointment
Expiration Time” has the meaning set forth in Section 3.7.
“Assumed
Servicing Liability” means any Liabilities with respect to any Serviced
Appointments (or Serviced Corporate Trust Contracts) that arise out of or relate
to facts, circumstances, actions, omissions and/or events occurring from and
after the Closing and prior to the applicable Succession Time for such Serviced
Appointment; provided that Assumed Servicing Liability shall not include any
Liabilities that arise out of or relate to facts, circumstances, actions,
omissions and/or events with respect to any Retained Duties or any matters for
which Seller or any of its Affiliates is responsible pursuant to Section 3.9.
“Authorization”
means, for any Appointment:
(a) any
Consent required to Transfer such Appointment to the applicable Purchaser
without a breach of, or triggering a right of termination under, the relevant
Corporate Trust Contracts for such Appointment;
(b) any
authority to Transfer such Appointment to the applicable Purchaser contained in
the Corporate Trust Contracts for such Appointment that does not require any
Consent described in clause (a), including provisions that permit or require
the Transfer of such Appointment to the applicable Purchaser automatically upon
a sale or transfer of all or substantially all of the Business or similar
provisions; provided that the applicable Purchaser satisfies all
Eligibility Requirements (including an Affiliate of such Purchaser satisfying
such Eligibility Requirements that are allowed to be satisfied by an Affiliate
of such Purchaser) and all Administrative Requirements are satisfied;
(c) any
statutory, judicial or regulatory procedure or authorization available under
applicable Law to Transfer such Appointment to the applicable Purchaser in lieu
of the Consents or authorizations referred to in clauses (a) and (b); or
(d) any
such other authority mutually agreed in writing by the applicable Purchaser and
the Seller Representative that is permitted under applicable Law and the terms
of the Corporate Trust Contracts for such Appointment.
“Bankruptcy
and Equity Exception” means that this Agreement is, when executed and
delivered by such member(s) of the Seller Group and assuming the due
authorization, execution and delivery hereof by the members of the Purchaser
Group that are (or are contemplated to be) party hereto, will be, legal, valid
and binding obligations of such members of the Seller Group enforceable in
accordance with their terms, subject to receivership, conservatorship and
supervisory powers of bank regulatory agencies, bankruptcy, rehabilitation,
liquidation, insolvency reorganization, moratorium, fraudulent transfer,
preferential transfer and similar Laws of general applicability relating to or
affecting creditors’ rights and remedies generally and to general equity
principles.
“Business”
means the corporate trust business of the Sellers acquired by the Purchasers
pursuant to the Purchase Agreement.
“Business
Day” means any day other than a Saturday, a Sunday or a day on which banks
in New York City are authorized or obligated by Law or Government Order to
close.
“Closing”
means the closing of the Sale pursuant to the Purchase Agreement.
“Closing
Date” means the date on which the Closing occurs pursuant to the Purchase
Agreement.
“Consent”
means a written consent, approval, waiver or other action (including, if permitted,
negative or passive consent) of a third party which, with respect to any
Appointment, is required to Transfer such Appointment to the applicable
Purchaser under the terms of the Corporate Trust Contracts for such Appointment
and applicable Law.
“Contract”
means any contract, agreement, undertaking, indenture, lease, sublease,
license, side letter or instrument of any kind (in each case whether in
written, electronic or, to the extent permitted, oral form), together with any
exhibits, schedules or documents executed or delivered in connection therewith
and any modifications, amendments, restatements or other supplements thereto.
“Corporate
Trust Capacity” means trustee, registrar, agency (including as paying
agent, transfer agent, collateral agent, fiscal agent, escrow agent or similar
agency capacity), servicer, master servicer, custodial (including document
custody) or other similar capacity under a Corporate Trust Contract, and any
rights or duties arising from, or the provision of any services in connection
with, any such capacities.
“Corporate
Trust Contract” means any indenture, trust, pooling and servicing, paying
agency, collateral or disbursing agency, securities (whether bond, note,
debenture or other) registrar, transfer agency or document custody Contracts
and all other fiduciary, agency and corporate trust Contracts, including call
rights, in each case, in respect of the Appointments.
“Credit
Enhancement Provider” means, with respect to any Securities, any person
issuing, funding or otherwise making available, for the benefit of
Securityholders or any party to a Serviced Corporate Trust Contract, an asset
as an enhancement of the credit quality or liquidity of any Securities or the
mortgage assets or other assets pledged for or underlying such Securities, such
as a letter of credit, surety bond, insurance policy, guaranty, reserve fund
pledge or collateral undertaking.
“Delaware
Trust Assets Purchaser” means the Computershare Delaware Trust Company.
“Deposits”
means all deposits (as defined in 12 U.S.C. § 1813(l)) that are held by any
Seller or any of its Affiliates in connection with the Business, in each case,
in the name or for the benefit of any clients or customers under the
Appointments solely in their capacity as clients or customers of the Business
and including any such deposits received by any Seller from and after the date
hereof through the close of business on the Closing Date.
“Effective
Time” means 12:01 a.m., New York City time, on the Closing Date.
“Eligibility
Requirement” means all eligibility requirements and other qualification
requirements for a person to act in the applicable Corporate Trust Capacity
under any Appointment as set forth in the related Corporate Trust Contract,
including any required authorizations or licenses from the Federal National
Mortgage Association, the Federal Home Loan Mortgage Corporation, the
Government National Mortgage Association, the Federal Housing Administration,
the Federal Home Loan Bank or the Department of Veterans Affairs.
“Encumbrance”
means any charge, pledge, mortgage, lien, hypothecation, usufruct, deed of
trust, security interest, adverse claim or interest, restriction or easement of
any kind.
“Excluded
Appointments” means those Appointments designated from time to time as
"Excluded Appointments" by agreement of the parties.
“Fees”
has the meaning set forth in Section 4.1.
“GAAP”
means generally accepted accounting principles in the United States, as applied
by the Sellers consistent with past practice.
“Government
Authority” means any foreign or domestic federal, state, provincial,
municipal, county, city or local legislative, administrative or regulatory
authority, agency, court, body or other governmental or quasi-governmental
entity with competent jurisdiction, including any supranational body.
“Government
Order” means any administrative decision or award, decree, injunction,
judgment, order, quasi-judicial decision or award, ruling or writ of any
arbitrator, mediator, tribunal, administrative agency or Government Authority.
“Guaranty”
means the guaranty provided by the Guarantor, as set forth in Section 9.5.
“Indemnified
Parties” has the meaning set forth in Section 8.2.
“Indemnified
Party’s Group” means the Seller Group (with respect to a Seller Indemnified
Party) or the Purchaser Group (with respect to a Purchaser Indemnified Party).
“Indemnifying
Party” means the Purchasers (with respect to the Purchasers’ obligations
pursuant to Section 8.1) or the Sellers (with the respect to the
Sellers’ obligations pursuant to Section 8.2), as the case may be.
“Joinder
Agreement” means the joinder agreement to be executed by the Delaware Trust
Assets Purchaser pursuant to which it will assume, and will be obligated, on a
several but not joint basis, to perform and satisfy, its obligations under this
Agreement.
“Law”
means any law, statute, ordinance, rule, regulation, code, Government Order or
other requirement or rule of law enacted, issued, promulgated, enforced or
entered by a Government Authority, including any fiduciary, ministerial or other
similar duties under applicable Law.
“Liabilities”
means any and all debts, liabilities, commitments and obligations of any kind,
whether fixed, contingent or absolute, matured or unmatured, liquidated or
unliquidated, accrued or not accrued, asserted or not asserted, known or
unknown, determined, determinable or otherwise, whenever or however arising
(including, whether arising out of any contract or tort based on negligence or
strict liability) and whether or not the same would be required by GAAP to be
reflected in financial statements or disclosed in the notes thereto.
“Losses”
means any damages, losses, payments, penalties, liabilities, judgments,
assessments, settlements, deficiencies, disbursements, costs and expenses (in
each case, other than Taxes but including any reasonable and documented legal
fees and reasonable and documented out-of-pocket expenses).
“LTM Fee
Revenue” has the meaning set forth in Section 7.2.2(c).
“Notice”
has the meaning set forth in Section 9.1.
“Permits”
means all licenses, permits, certificates, registrations and other
authorizations and approvals that are issued by or obtained from any Government
Authority.
“Proceedings”
means all litigations (civil and criminal), arbitrations, administrative
proceedings, investigations, suits, claims or charges.
“Purchase
Agreement” means the Amended and Restated Purchase Agreement, dated March
23 2021, as amended, modified or supplemented from time to time with its terms,
which the Sellers, the Bank Assets Purchaser and the Delaware Trust Assets
Purchaser (upon execution of the Joinder Agreement) are parties to, together
with Guarantor (solely for certain specified purposes).
“Purchaser
Group” means, at any time, the group of companies comprised of the
Purchasers, the Guarantor and the Guarantor’s subsidiaries at that time.
“Purchaser
Indemnified Parties” has the meaning set forth in Section 8.2.
“Related to
the Business” means required for, primarily related to, or used primarily
in connection with, the Business as conducted by the Sellers as of the date
hereof and prior to the Closing.
“Restricted
Appointment” means (a) any Appointment for which the applicable Authorizations
have not been obtained, and (b) any Appointment for which the maturity date of
the applicable Corporate Trust Contract is on or before June 30, 2022.
“Retained
Duty” means any role or duty under a Corporate Trust Contract with respect
to any Appointment as account bank, depositary / depository, depository agent,
eligible lender trustee, master servicer, backup advancing agent, trustee (or
other similar role), buyer, financial institution or lender, in each case:
(a) to
the extent that the applicable Corporate Trust Contract requires such role to
be performed by a deposit taking institution and to the extent that no
Purchaser is eligible to serve in such role (it being understood that,
Purchasers and their Affiliates will not be required to accept and hold
deposits from a third party unaffiliated with the Purchasers); or
(b) to
the extent that the Purchasers or their Affiliates would be required to fund or
originate loans or other extensions of credit (provided that neither this
clause (b) nor clause (c) below shall limit Purchasers’ obligations to satisfy
advancing obligations or backup advancing obligations with respect to
servicing, master servicing, trustee, bond administration or backup advancing
agent roles (or other similar roles) in accordance with the terms of any
applicable Corporate Trust Contract); or
(c) to
the extent that the applicable rating agency counterparty criteria are not
satisfied so as to allow a Purchaser that is otherwise eligible to serve in
such role to assume such role without causing a rating agency in connection
with such transaction to downgrade (or place on watch for downgrade) the rating
assigned to the Securities issued pursuant to such Corporate Trust Contract
(provided, that (i) this clause (c) shall not require the Sellers to retain any
obligation other than backup advancing or retain any role to the extent not
directly related to backup advancing; (ii) notwithstanding anything to the
contrary in this Agreement or the Purchase Agreement, the retention by Sellers
of any backup advancing obligations pursuant to this provision shall not be the
basis, in and of itself, for treating an Appointment as a Restricted
Appointment (rather than as a Transferred Asset); (iii) if at any time the
applicable rating agency counterparty criteria are satisfied so as to allow a
Purchaser that is otherwise eligible to serve in such role to assume such role
without causing a rating agency in connection with such transaction to
downgrade (or place on watch for downgrade) the rating assigned to the
Securities issued pursuant to such Corporate Trust Contract, the backup
advancing function will automatically cease to be a Retained Duty hereunder and
the applicable Purchaser shall thereafter be solely responsible for backup
advancing with respect to such Securities without any further action of the
parties hereto); and (iv) Purchasers and Sellers agree to cooperate in periodic
reconciliation of the list of Corporate Trust Contracts for which Sellers
maintain a Retained Duty to perform backup advancing agent functions). With
respect to clause (c) of this definition, the Purchasers and the Sellers shall
(x) administer any backup advancing consistent with Exhibit A hereto, and (y)
work with the applicable rating agencies to update them periodically regarding
the Corporate Trust Contracts for which a Seller is serving as backup advancing
agent.
“Sale”
means acquisition of the Business and other transactions contemplated by the
Purchase Agreement.
“Securities”
means any securities, bonds, notes, debentures, pass-through certificates, Real
Estate Mortgage Investment Conduit (REMIC) certificates, asset-backed
certificates, participation certificates, collateralized mortgage obligations,
collateralized debt obligations, revenue certificates, custody receipts, trust
receipts, or other instruments evidencing a right to monetary distributions or
payments which were issued pursuant to any Serviced Corporate Trust Contract
(whether or not such instrument is referred to as a “security” or as some other
kind of instrument (such as a mortgage participation) under the Serviced
Corporate Trust Contracts).
“Securityholder”
means any person recognized as the owner of a Security pursuant to any Serviced
Corporate Trust Contract (including any limited purpose corporation, trust or
other entity that holds such Security solely for the purposes of selling,
depositing or pledging such Security as an asset underlying another issue of
Securities).
“Seller
Group” means, at any time, the group of companies comprised of Wells Fargo
& Company and its subsidiaries at that time.
“Seller
Indemnified Parties” has the meaning set forth in Section 8.1.
“Seller
Representative” means Wells Bank.
“Serviced
Appointment” has the meaning set forth in Section 1.1.
“Serviced Corporate
Trust Contract” means any Corporate Trust Contract in respect of a Serviced
Appointment.
“Serviced
Duty” means all duties and obligations of the Sellers in a Corporate Trust
Capacity under the Serviced Corporate Trust Contract related to each Serviced
Appointment, in each case, other than any Retained Duty.
“Servicer”
means, with respect to any Serviced Duty, the applicable Purchaser performing
Serviced Duties as agent of the applicable Seller pursuant to the terms of this
Agreement.
“Specified
Action” has the meaning set forth in Section 3.4.2.
“Succeeded
Appointment” means any Appointment for which a Succession Time has
occurred.
“Succession
Time” means, for any Appointment, (a) the Effective Time, if all
Authorizations for such Appointment have been received as of that time or (b)
if any Authorization for such Appointment has not been received as of the
Effective Time, the time that all Authorizations for such Appointment have been
received.
“Tax
Authority” means any Government Authority responsible for the imposition of
any Tax.
“Taxes”
means all taxes, charges, fees, levies or other similar assessments, however
denominated, imposed by any Tax Authority (including income, stamp, gross
receipts, sales, use, value-added, transfer, registration, windfall profits,
real property, personal property, production, license, excise, franchise,
severance, employment, payroll, withholding, estimated, equity, net worth,
financial transactions, excise, severance, stamp, occupation, premium,
environmental, customs, duties, capital stock, franchise, alternative, add-on
minimum, or other taxes), together with any interest, penalties, fines and
additions imposed by any Tax Authority with respect to taxes.
“Third-Party
Claim” has the meaning set forth in Section 8.3.
“Transfer”
(including, with correlative meanings, “Transferred” and “Transferring”)
shall mean, with respect to any Appointment, the legal transfer to the
applicable Purchaser as successor to any Seller of, and succession of the
applicable Purchaser as successor to such Seller to, all rights, interests,
obligations and duties of such Seller (including in its Corporate Trust
Capacity) in all respects under such Appointment, including the assumption by
the applicable Purchaser of the Liabilities related to or arising out of such
Appointment.
“Transferred
Assets” means the assets, rights and properties of the Sellers that the
Purchasers shall acquire as of the Closing.
“Trust
Assets” means, with respect to the Appointments and to the extent held,
deposited or invested by any Seller for the benefit of others (whether or not
constituting all or a portion of the corpus of any trust) as collateral, trust
assets or otherwise by the applicable Corporate Trust Contracts or any other
applicable legal obligation, (a) all cash on hand or held in bank accounts
(including the Deposits) or in money market funds, and (b) all shares, stock,
bonds, debentures, notes, mortgages, guarantees, letters of credit,
certificates of indebtedness, warrants, treasuries or other securities or
financial instruments or property of any type or description.
2.2
Rules of Construction; Headings. Unless the express context
otherwise requires:
(a).
The words “hereof,” “herein” and “hereunder” and words
of similar import, when used in this Agreement, shall refer to this Agreement
as a whole and not to any particular provision of
this Agreement.
(b).
The terms defined in the singular have a comparable meaning when used in
the plural, and vice versa.
(c).
If a word or phrase is defined, the other grammatical forms of such word
or phrase have a corresponding meaning.
(d).
The headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this
Agreement;
(e).
The terms “USD,” “Dollars” and “$” mean United
States Dollars.
(f).
Wherever the word “include,” “includes” or
“including”
is used in this Agreement (except in the definition of the term “Agreement”),
it shall be deemed to be followed by the words “without limitation”.
(g).
References to “as of the date hereof” shall mean, in all
instances, the date of this Agreement.
(h).
References herein to any gender includes each other gender.
(i).
References to:
i.
a “person” include any individual, firm, company, joint venture,
Government Authority, partnership or unincorporated association (whether or not
having separate legal personality); and
ii.
a “company” include any company, corporation or body corporate
(including a limited liability company), wherever incorporated or formed.
(j).
References to “subsidiary” mean, in respect of any person, any
corporation, company (including any limited liability company), association,
partnership, joint venture or other business entity of which 50% or more of the
total voting power of the voting stock is at the time owned or controlled,
directly or indirectly.
(k).
References to “paragraphs,” “Clauses,”
“Sections,”
“Recitals” and “Schedules” are to paragraphs, Clauses, Sections
and Recitals of, and Schedules to this
Agreement.
(l).
References to any Law (a) include a reference
to the corresponding rules and regulations promulgated thereunder and (b) include a reference to each of them as amended,
modified, supplemented, consolidated, replaced or rewritten from time to time.
(m).
References to any section of any Law include any successor to such
section.
(n).
References to a time of day are, unless otherwise specified, references
to New York time.
(o).
References to a “party” herein refer to the Purchasers or the
Sellers, as applicable.
(p).
References to writing shall include any mode of reproducing words in a
legible and non-transitory form.
(q).
The word “or” shall not be exclusive.
(r).
The rule known as the ejusdem generis rule shall not apply, and
accordingly, general words introduced by the word “other” shall not be given a
restrictive meaning by reason of the fact that they are preceded by words
indicating a particular class of acts, matters or things.
3.
Duties of the Servicer
3.1
Retention of Servicer. Effective as of the Closing Date, to
the fullest extent permitted under applicable Law and under the Serviced
Corporate Trust Contract related to each Serviced Appointment, (a) Wells Bank
hereby engages the Bank Assets Purchaser and (b) Wells Trust Company hereby
engages Delaware Trust Assets Purchaser (or the Bank Assets Purchaser, if
required by Section 3.3), in each case, as Servicer to perform and
discharge the Serviced Duties in respect of each Serviced Appointment as agent
of such Seller. To the fullest extent permitted under applicable Law and
under such Serviced Corporate Trust Contract, this Agreement shall satisfy any
requirement under any such Serviced Corporate Trust Contract for a written
instrument of agency appointment with respect to any of the Serviced
Appointments.
3.2
Acceptance and Performance of Duties under Serviced Appointments.
With respect to each Serviced Appointment of Wells Bank, the Bank Assets
Purchaser hereby accepts its engagement as Servicer and agrees to perform and
discharge all Serviced Duties consistent with the terms hereof. With respect to
each Serviced Appointment of Wells Trust Company, the Delaware Trust Assets
Purchaser (or the Bank Assets Purchaser, if required by Section 3.3)
hereby accepts its engagement as Servicer and agrees to perform and discharge
all Serviced Duties consistent with the terms hereof. On the terms and subject
to the conditions set forth herein, including Article 8, effective as of
the Closing, the Purchasers agree to discharge and perform when due the Assumed
Servicing Liabilities.
3.3
Delaware Trust Assets Purchaser. The Delaware Trust Assets
Purchaser shall be the Servicer engaged to perform and discharge the Serviced
Duties in respect of each Appointment of Wells Trust Company that continues to
be treated as a Restricted Appointment.
3.4
Delegation of Authority to Act; Specified Actions.
3.4.1
Subject to Section 3.1 and Section 3.2, Wells Bank
hereby grants to the Bank Assets Purchaser and Wells Trust Company hereby
grants to the Delaware Trust Assets Purchaser (or the Bank Assets Purchaser, if
required by Section 3.3), as Servicer hereunder, (a) the full right,
power and authority to take any action (including any Specified Action) or to
omit to take any action (including any Specified Action); provided that
no such action or omission shall be taken unless it would be authorized if
taken or omitted to be taken by the applicable Seller under the applicable
Serviced Corporate Trust Contracts, and (b) all other rights, powers and entitlements
of the Sellers under such Serviced Corporate Trust Contracts. In the
event the parties identify any duties or obligations that are non-delegable
under applicable Law or pursuant to the terms of the Serviced Corporate Trust
Contracts, the parties agree to cooperate in good faith to determine how such
duties or obligations are to be satisfied in a way to effect the original
intent of the parties that the Purchasers have acquired the Business (and
control thereof) and are entitled to receive the economic benefits and
obligated to bear the economic burdens of the Serviced Appointments.
3.4.2
On the Closing Date, Wells Bank shall execute and deliver to the Bank
Assets Purchaser one or more legal powers of attorney in favor of the Bank
Assets Purchaser and Wells Trust Company shall execute and deliver to the
Delaware Trust Assets Purchaser (or the Bank Assets Purchaser, if required by Section
3.3) one or more legal powers of attorney in favor of the Delaware
Trust Assets Purchaser (or the Bank Assets Purchaser, if required by Section
3.3), in each case, in form and content necessary and effective to
authorize such persons to take any action (including any Specified Action) or
to omit to take any action (including any Specified Action) and to execute
documents or other papers in the applicable Seller’s place and stead, to the
fullest extent necessary or appropriate for each applicable Purchaser to
exercise the powers and perform the duties provided for hereunder, and
following the Closing, the Sellers shall use reasonable best efforts to take
all other such actions and execute such other documents as the Purchasers may
from time to time reasonably request in order for them to exercise the powers
and perform the duties provided for hereunder. For purposes of this
Agreement, and without limiting the grant of authority in the preceding
sentence, “Specified Action” means any action (including any
determination to take no action) with respect to a Serviced Appointment,
including any action (or determination to take no action) requiring or
permitting the exercise of judgment in connection with decisions between or
among alternative courses of action, which may include determinations with
respect to the following:
(a) the
release or subordination of any lien on assets pledged to secure any
Securities;
(b) the
sale or other disposition of any assets underlying or pledged to secure any
Securities;
(c) the
creation or imposition of any Encumbrance (other than Encumbrances created by
the Serviced Corporate Trust Contracts) upon any assets underlying or pledged
to secure any Securities;
(d) the
acceptance of any substitute collateral pledged for or assets underlying any
Securities;
(e) the
acceptance of any substitute credit enhancement or liquidity facility (such as
a replacement letter of credit, replacement standby bond purchase agreement or
a reserve fund to be substituted for a letter of credit) for any Securities;
(f) the
removal of any trustee, custodian or servicer (other than the Sellers) or any
agent of a trustee, issuer, seller, servicer, depositor or any other person
that is a party to any Serviced Corporate Trust Contract (whether or not for
cause) or to determine whether there is sufficient cause to remove any such
person;
(g) any
waiver, amendment or modification of the terms of any Serviced Corporate Trust
Contract, or any termination thereof;
(h) any
defeasance of obligations in respect of any Securities;
(i)
any plan of liquidation of a grantor or pass-through trust or other
issuer of Securities;
(j)
the approval of the amount or kind of indemnity given or Security
pledged, for the benefit of the Sellers;
(k) the
release of any documents from any custody arrangement established for the
direct or indirect benefit of Securityholders;
(l)
taking any action that is not prohibited under any applicable Serviced
Corporate Trust Contract requiring the exercise of discretion (either in
carrying out the action or in deciding whether to take the action) that is
requested by a party to such Serviced Corporate Trust Contract or any
Securityholder(s) that is not required to be taken under the terms of such
Serviced Corporate Trust Contract;
(m)
taking any other action related to a default or the sending of default
notices to issuers or Securityholders; or
(n) taking
any other action of a nature similar to any of the foregoing.
3.4.3
Nothing contained in this Section 3.4 shall be construed to
divest the Sellers of any power or authority in respect of any Serviced
Appointment that applicable Law would not permit the Sellers to divest.
3.4.4
In the case of any action by the Purchasers in respect of a Serviced
Appointment that requires related documentation to be executed by the Sellers,
the Purchasers shall, at their sole expense (as between the Sellers and the
Purchasers), promptly prepare or cause to be prepared such documentation and
shall deliver such documentation to the applicable Seller, and the applicable
Seller shall promptly execute and deliver such documentation to the Purchasers.
3.4.5
Subject to the terms of the Corporate Trust Contracts and applicable
Law, the Sellers shall provide such cooperation and assistance as may be
reasonably requested by a Purchaser in connection with demonstrating to a third
party the Purchasers’ authority to perform the Serviced Duties and take actions
that are authorized under this Agreement.
3.4.6
The Sellers shall promptly notify the Purchasers of any instructions
received by the Sellers pursuant to the Corporate Trust Contracts, including
from any issuer, depositor, servicer or other party thereto or any
Securityholders. The instructions contemplated by this Section 3.4.6
shall not be instructions of the Sellers for purposes of Section 8.2.
3.5
Servicer’s Standard of Care. In performing Serviced Duties
hereunder with respect to any Serviced Appointment, the Purchasers shall comply
with the terms of the applicable Serviced Corporate Trust Contracts, including
the standard of care set forth therein (including the standard that applies in
the case of an event of default), and shall perform the Serviced Duties in
accordance with the terms of the applicable Serviced Corporate Trust Contracts
and this Agreement and in compliance with applicable Law, including, as
applicable, Item 1122 of Regulation AB and 12 C.F.R. Part 9, as though the
Purchasers were directly responsible for the Serviced Duties under the
applicable Serviced Corporate Trust Contracts. Each of the Purchasers
covenants and agrees that it shall perform the Serviced Duties in a manner consistent
with (and with a standard of care no less than) the Purchasers’ practices in
servicing its own corporate trust business (including the Business acquired by
the Purchasers), and, with respect to each Serviced Appointment, in accordance
with the applicable Serviced Corporate Trust Contract.
3.6
The Purchasers May Act Through Agents. To the extent
permitted under the applicable Serviced Corporate Trust Contracts, the
Purchasers may perform any of the Serviced Duties through agents, so long as the
Purchasers exercise the degree of care required pursuant to Section 3.5
in selecting and supervising any such agents. The fees and expenses of
any such agents shall be the obligations of the Purchasers, and the Sellers
shall have no obligation with respect to any such fees or expenses. The
Purchasers shall remain fully obligated and responsible for the performance of
all of its obligations under this Agreement, notwithstanding their engagement
of any such agents.
3.7
Termination of Serviced Duties. At the time all of the
applicable Seller’s obligations under any Serviced Appointment are terminated
and/or of no further force and effect (the “Appointment Expiration Time”),
including upon or following any (a) valid termination or removal of the
applicable Seller from all Corporate Trust Capacities with respect to a
Serviced Appointment, whether as a Succeeded Appointment or otherwise, or (b)
with the prior consent of the applicable Purchaser, resignation by, assignment
by or succession of the applicable Seller from all Corporate Trust Capacities
with respect to a Serviced Appointment, whether as a Succeeded Appointment or
otherwise, the Purchasers (i) shall have no further Serviced Duties under
this Agreement in connection with such Appointments and (ii) shall not be
responsible hereunder for any of the duties, obligations or liabilities related
to such Appointments accruing or arising on or after the Appointment Expiration
Time, or for any performance, duties or obligations related thereto arising
prior to, but requiring performance after, the Appointment Expiration Time, in
each case, without limiting the Purchasers’ obligations under the Purchase
Agreement. The parties shall execute, or procure the execution of, such
documents and instruments as may be reasonably necessary to give effect to this
Section 3.7.
3.8
Trust Assets. To the extent permitted by applicable Laws
and in accordance with the Serviced Corporate Trust Contracts for Serviced
Appointments, Wells Bank hereby appoints the Bank Assets Purchaser and Wells
Trust Company hereby appoints the Delaware Trust Assets Purchaser (or the Bank
Assets Purchaser, if required by Section 3.3) as custodial agent to
receive, hold, deposit, invest and transfer Trust Assets related to the
Serviced Appointments of the Wells Bank and Wells Trust Company,
respectively. The Trust Assets shall be transferred after the Closing in
accordance with the terms of the applicable Serviced Corporate Trust
Contract. Each Purchaser represents and warrants to the applicable Seller
that the accounts to which the Trust Assets will be transferred satisfy all
eligible accounts requirements under the terms of the applicable Serviced
Corporate Trust Contract and applicable Law.
3.9
Excluded Appointments. With respect to the Excluded
Appointments, (a) nothing in this Agreement shall give the Purchasers the right
to control or defend any Proceeding to which any Seller or any of its
Affiliates is a party to the extent such Proceedings have resulted in such
Appointment being classified as an Excluded Appointment, and, except as may
otherwise be agreed between the parties hereto, the Sellers or their Affiliates
shall be responsible for the control, defense and/or settlement any such
Proceeding and (b) the Sellers or their Affiliates shall be responsible for the
control, defense and/or settlement of any matters that have resulted in such
Appointment being treated as an Excluded Appointment because the Seller
Representative reasonably determines that such appointment is required to be
excluded pursuant to applicable Law. Subject to Section 8.2, the
Purchasers shall use reasonable best efforts to take any Specified Actions
reasonably requested by the Sellers in connection with the Sellers’ defense of
such Proceedings or the settlement thereof; provided that the Sellers
shall promptly reimburse the Purchasers for any reasonable, documented
out-of-pocket costs and expenses incurred by the Purchasers in connection with
taking any such actions.
3.10 Retained
Duties. With respect to all Appointments, the Sellers shall continue to
perform the Retained Duties in accordance with the terms of the applicable
Corporate Trust Contracts and this Agreement and in compliance with applicable
Law. The Purchasers shall pay to the Sellers compensation for the
Retained Duties on commercial terms that are reasonably agreed between the
Purchasers and the Sellers. The parties agree that the Sellers shall not
receive any compensation with respect to any Retained Duties described in
clause (c) of the definition thereof.
4.
Servicer’s Compensation and Expenses
4.1
Compensation. The Purchasers shall receive and retain all
fees, compensation, reimbursement for expenses and other income related to the
Serviced Appointments, including accounts receivables outstanding at the
Effective Time (the “Fees”) paid to or otherwise received by any Seller
or any member of the Seller Group pursuant to the Serviced Corporate Trust
Contracts with respect to the period on and after the Closing and shall
otherwise be entitled to the economic benefits and shall bear the economic
burdens of the Serviced Appointments as if the Serviced Appointment had
transferred to the applicable Purchaser upon the Closing, in each case, other
than in respect of the Retained Duties. If the Sellers or any member of
the Seller Group receive any such Fees which pursuant to the preceding sentence
are to be paid to the Purchasers, the Sellers shall promptly remit (or cause
such member of the Seller Group to remit) such amounts to the Purchasers.
The Sellers shall have no liability for or obligation to pay uncollected Fees.
At the reasonable request of the Purchasers, the Sellers will cooperate with
and assist the Purchasers in collecting any such uncollected Fees from the
obligors thereof. If and to the extent any Seller is authorized under any
Serviced Corporate Trust Contract to cause any Fees payable with respect to the
related Serviced Appointment to be paid by withdrawal from the related account
or from any reserve funds established therefor or by withholding from any
amount otherwise payable or distributable from such account, then the
Purchasers may (without the requirement of express authorization from the
Sellers) cause such amounts to be paid to the Purchasers from any such account
maintained by the Purchasers in satisfaction of the Fees with respect
thereto. The right of the Purchasers to receive the Fees pursuant to this
Section 4.1 with respect to a Serviced Appointment will commence on the
Closing Date, and terminate upon the earlier of (a) the date on which such
Serviced Appointment is no longer subject to this Agreement or (b) the
termination of this Agreement in accordance with Section 7.
4.2
Expenses. The expenses and costs allocable to all
aspects of performing Serviced Duties shall be the responsibility of, paid by
and for the account of the Purchasers, except as otherwise provided in this
Agreement. The obligation of the Purchasers to pay expenses and costs
pursuant to this Section 4.2 will commence on the Closing Date and
terminate upon the termination of this Agreement in accordance with Section
7. Without limiting Purchasers’ obligations to indemnify the Sellers
for the Assumed Servicing Liabilities pursuant to Section 8.1, the
Purchasers may exercise, in their reasonable discretion, any rights under a
Serviced Corporate Trust Contract related to a Serviced Appointment to any
refunds, claims, causes of action, indemnity, contribution, reimbursement
rights of set off and rights of recoupment recoverable from or against any
third party, the Trust Assets or otherwise (including rights to insurance
proceeds and rights under and pursuant to all warranties, representations and
guarantees), in each case, to the extent related to any Assumed Servicing
Liability, including to obtain indemnification, reimbursement or recovery of
costs or expenses of the Purchasers from the sponsor, issuer, obligor,
depositor or other source of funds available under the terms of any such
Serviced Corporate Trust Contract, and in connection therewith the Sellers
agree to file such notices and claims pursuant to such Serviced Corporate Trust
Contracts as the Purchasers may reasonably request (and the Sellers shall not
separately exercise such rights, except as directed by the Purchasers, with
respect to any Assumed Servicing Liability); provided that, solely with
respect to any Assumed Servicing Liability under the Serviced Appointments, the
Purchasers shall promptly reimburse the Sellers for any reasonable, documented
out-of-pocket costs and expenses incurred by the Sellers in connection with
making any such filings.
4.3
Sellers’ Costs and Expenses. Except as may otherwise be
provided in this Agreement, including Section 8.1, or in the Purchase
Agreement, all expenses and costs incurred by the Sellers in connection with
the performance of their obligations hereunder shall be the responsibility of,
paid by and for the account of the Sellers.
5.
Covenants of the Sellers
5.1
Preservation of Serviced Appointments. Without the prior
written consent of the Purchasers, the Sellers shall not (a) amend or
modify any Serviced Corporate Trust Contract with respect to any Serviced
Appointment, (b) terminate, or consent to the termination of, any Serviced
Corporate Trust Contract, (c) sell, transfer, assign or otherwise dispose
of any Serviced Appointment, or resign (or consent to removal) from any
Serviced Appointment, except as permitted pursuant to Section 7.2.1 and
except in the event that the applicable Seller reasonably determines, in
consultation with the Purchasers, that such Seller is required to resign from
such Serviced Appointment based on a bona fide risk management decision
of the Seller Group related to financial crimes compliance or financial crimes
related matters, or (d) agree to do any of the foregoing, in each case, except
as required to comply with applicable Law or the requirements of a Government
Authority of competent jurisdiction.
5.2
Supplying Information. Each Seller shall deliver or provide
access to such records, documents, information and data to the applicable
Purchaser as such Purchaser may reasonably request in order to properly and
efficiently perform its obligations hereunder; provided, however,
that the Sellers shall not be required to deliver or provide access to any
records, documents, information or data that (a) relates
to a part of the business of the Seller Group that is not being serviced by the
Purchasers pursuant to this Agreement, (b) in the Sellers’ reasonable
determination could violate applicable Law, or could result in the loss or
waiver of any attorney-client, work product or similar legal privilege or (c) in the Sellers’ reasonable determination could
violate any contractual obligation of the Seller
Group with respect to confidentiality; provided, however,
the Sellers and the Purchasers shall cooperate in good faith to put in place
appropriate substitute disclosure arrangements, including, in the case of
clause (a), by separating or redacting the portion of the information that
relates to a part of the business of the Seller Group that is not being
serviced by the Purchasers pursuant to this Agreement and, in the case of
clauses (b) and (c), by using commercially reasonable efforts to obtain the
consent of such third party to such access.
5.3
Notice of Defaults. Each Seller shall promptly notify the
applicable Purchaser upon becoming aware of any default or event of default
under the Serviced Corporate Trust Contract relating to any Serviced
Appointment, including any failure by the obligor under any Serviced Corporate
Trust Contract to make any payment of principal or interest when due and the
receipt of notice under any such agreement that an event has occurred which,
with the giving of notice or the lapse of time, or both, would constitute a
default, termination or cancellation under such agreement.
5.4
Notice of Litigation. Each Seller shall promptly notify the
applicable Purchaser upon becoming aware of any Proceedings or threatened
Proceedings concerning any Serviced Appointment, in each case, excluding
Proceedings in servicer-managed mortgage-level litigation with respect to
residential mortgage-backed securities transactions. Notices delivered
pursuant to this Section 5.4 will be delivered to the notice recipient
designated on Annex B.
5.5
Notice of Complaints. Each Seller shall promptly notify the
applicable Purchaser upon becoming aware of any complaint concerning any
Serviced Appointment made by any party to the Serviced Corporate Trust
Contracts, any Securityholder, any Credit Enhancement Provider or any rating
agency.
5.6
Notice of Regulatory Action. To the extent permitted by
applicable Law, each Seller shall promptly notify the applicable Purchaser of
any action, claim, inquiry, audit, investigation or examination taken or made
by a Government Authority that may affect the conduct of a Serviced Appointment
and shall consult with such Purchaser as to any changes in duties or other
arrangements hereunder to be taken in connection therewith.
5.7
Notice of Certain Events. Each Seller shall promptly notify
the applicable Purchaser upon receipt of (a) any written claim or
allegation asserted by a third party of any noncompliance by another party with
any Serviced Corporate Trust Contract relating to any Serviced Appointment, and
(b) any written claim by any Government Authority responsible for the
imposition of Taxes against any Trust Assets of any Serviced Appointment for
additional Taxes, interest, penalties or additions to Tax, whether relating
directly to a Tax liability of the Trust Assets or to an obligation to file
information returns or reports with respect to or in connection with such Trust
Asset, its beneficiaries or other third parties.
5.8
Confidentiality. Each Seller shall maintain the confidentiality
of records, documents, information and data made available to it by the
Purchasers hereunder in accordance with the Annex B attached hereto.
5.9
Compliance With Law. Each Seller shall comply with all Laws
applicable to it insofar as such compliance is material to its performance of
its obligations hereunder. Each Seller shall at all times maintain all
necessary Permits in order to be qualified to act as Appointed Trustees under
the Serviced Corporate Trust Contracts relating to the Serviced Appointments.
5.10 Insurance.
Each Seller shall at all times maintain insurance coverage against potential
liabilities in connection with the administration of the Serviced Appointments
consistent with good custom and practice in the industry.
6.
Covenants of the Purchasers
6.1
Preservation of Sellers’ Rights of Recovery. Without the
prior written consent of the Sellers, the Purchasers shall not amend or modify
or grant a waiver under (or agree to amend or modify or grant a waiver under)
any Serviced Corporate Trust Contract with respect to any Serviced Appointment
in a manner that would materially reduce or materially alter the rights of the
Sellers to indemnification, reimbursement or recovery for any costs and
expenses incurred by the Sellers or their Affiliates or agents (other than the
Purchasers in their capacity as Servicer hereunder) from the sponsor, issuer,
obligor, depositor or other source of funds available under the terms of any
such Serviced Corporate Trust Contract. Notwithstanding the foregoing,
such amendment, modification or waiver shall not require the Sellers’ consent
if the Purchasers agree in their sole discretion to indemnify the Sellers to
the extent such amendment, modification or waiver reduces the Sellers’
available indemnification, reimbursement or recovery for costs and expenses
under the terms of any such Serviced Corporate Trust Contract.
6.2
Supplying Information. Each Purchaser shall deliver such
records, documents, information and data to the applicable Seller as such
Seller may reasonably request in order to properly and efficiently perform such
Seller’s obligations hereunder or under any Serviced Corporate Trust Contract
with respect to any Serviced Appointment (for clarity, including in connection
with the Seller Group’s governance and reporting mechanisms) or to defend,
prosecute, appeal, pursue or cooperate with any judicial, arbitral or
regulatory proceeding, audit, claim or investigation to which any Seller or any
of its Affiliates is a party with respect to any Serviced Appointment; provided,
however, that the Purchasers shall not be required to deliver any
records, documents, information or data that (a) in the Purchasers’ reasonable
determination could violate applicable Law, or could result in the loss or
waiver of any attorney-client, work product or similar legal privilege or (b)
in the Purchasers’ reasonable determination could
violate any contractual obligation of the Purchaser Group with respect to confidentiality;
provided, however, that with respect to clauses (a) and (b), the
Sellers and the Purchasers shall cooperate in good faith to put in place
appropriate substitute disclosure arrangements, including by using commercially
reasonable efforts to obtain the consent of such third party to such
access.
6.3
Notice of Defaults. Each Purchaser shall promptly notify
the applicable Seller upon becoming aware of any default or event of default
under the Serviced Corporate Trust Contracts relating to any Serviced
Appointment, including any failure by the obligor under any Serviced Corporate
Trust Contract to make any payment of principal or interest when due and the
receipt of notice under any such agreement that an event has occurred which, with
the giving of notice or the lapse of time, or both, would constitute a default,
termination or cancellation under such agreement.
6.4
Notice of Litigation. Each Purchaser shall promptly notify
the applicable Seller upon becoming aware of any Proceedings or threatened
Proceedings concerning any Serviced Appointment (whether or not the Sellers are
named in such Proceedings), in each case, excluding Proceedings in
servicer-managed mortgage-level litigation with respect to residential mortgage-backed
securities transactions. Notices pursuant to this Section 6.4 will
be delivered to the notice recipient designated on Annex B.
6.5
Notice of Complaints. Each Purchaser shall promptly notify
the applicable Seller upon becoming aware of any complaint concerning any
Serviced Appointment made by any party to the Serviced Corporate Trust
Contract, any Securityholder, any Credit Enhancement Provider or any rating
agency.
6.6
Notice of Regulatory Action. To the extent permitted by
applicable Law, each Purchaser shall promptly notify the applicable Seller of
any action, claim, inquiry, audit, investigation or examination taken or made
by a Government Authority that may affect the conduct of a Serviced Appointment
and shall consult with the applicable Seller as to any changes in duties or
other arrangements hereunder to be taken in connection therewith.
6.7
Notice of Certain Events. Each Purchaser shall promptly
notify the applicable Seller upon receipt of (a) any written claim or
allegation asserted by a third party (including any ratings agency) of any
noncompliance by another party (including such Purchaser) with any Serviced
Corporate Trust Contract relating to any Serviced Appointment, and (b) any
written claim by any Government Authority responsible for the imposition of
Taxes against any Trust Assets of any Serviced Appointment for additional
Taxes, interest, penalties or additions to Tax, whether relating directly to a
Tax liability of the Trust Assets or to an obligation to file information
returns or reports with respect to or in connection with such Trust Asset, its
beneficiaries or other third parties.
6.8
Confidentiality. Each Purchaser shall maintain the confidentiality
of records, documents, information and data made available to it by the Sellers
hereunder in accordance with the Annex B attached hereto.
6.9
Compliance With Law. Each Purchaser shall comply with all
Laws applicable to it insofar as such compliance is material to its performance
of its obligations hereunder. As applicable, each Purchaser and its
Affiliates shall at all times maintain all necessary Permits in order to be
qualified to act hereunder as a Servicer and perform and discharge all Serviced
Duties consistent with the terms hereof. For the avoidance of doubt, without
limiting the Purchasers’ obligations under the Purchase Agreement, this Section
6.9 shall not require Purchasers to obtain any new Permits.
6.10 Insurance.
Each Purchaser shall at all times maintain insurance coverage against potential
liability in connection with the administration of the Serviced Appointments
consistent with good custom and practice in the industry.
7.
Termination; Resignation and Successions
7.1
Final Termination. Unless terminated at an earlier date by
mutual agreement of the parties hereto, this Agreement shall terminate upon the
first to occur of the following: (a) the last Serviced Appointment is
terminated, matured or expired under the terms of the applicable Serviced
Corporate Trust Contract and all Trust Assets in respect thereof have been
fully distributed, (b) the last Serviced Appointment is Transferred to the
applicable Purchaser, (c) the applicable Seller has resigned from the last
Serviced Appointment if permitted under Section 7.2 below or
(d) the applicable Seller is removed from appointment or the applicable
Seller’s appointment is terminated with respect to the last Serviced
Appointment in accordance with this Agreement, the applicable Serviced
Corporate Trust Contract or any other agreement between the parties hereto
entered into on or prior to the date hereof. Upon termination of this Agreement
in accordance with this Section 7.1, each party’s further rights and
obligations hereunder, other than the provisions of Section 8 and
Section
9, shall terminate and be of no further force and effect and no party shall
have any liability hereunder, except that neither the Sellers nor the
Purchasers shall be relieved or released from any liabilities or damages
arising out of its breach of any provision of this Agreement prior to
termination.
7.2
Other Terminations.
7.2.1
Partial Terminations by the Purchasers. In the event so
instructed by the Purchasers in writing after the Closing Date and at the
Purchasers’ sole expense, each Seller shall execute documents prepared by the
Purchasers and reasonably acceptable to such Seller resigning or appointing a successor
Appointed Trustee under any Serviced Appointment for which such Seller acts as
Appointed Trustee (other than with respect to any Serviced Appointment that is
an Excluded Appointment), and shall reasonably cooperate, at the Purchasers’
sole expense, as instructed by the Purchasers, in finding a qualified successor
Appointed Trustee, including executing any documents prepared by the Purchasers
in connection with the application to a court of competent jurisdiction to
appoint a successor Appointed Trustee.
7.2.2
Clean-Up Terminations by the Sellers.
(a) The Sellers
shall have the right to elect to terminate this Agreement in the event that the
remaining Serviced Appointments have generated LTM Fee Revenue that is less
than 5% of the aggregate fee revenue generated by all Appointments that are
Serviced Appointments as of January 1, 2024 in the twelve-month period prior to
January 1, 2024.
(b) In the event
the Sellers elect to terminate this Agreement pursuant to clause (a) above, the
Sellers shall, concurrently with such termination, pay to the Purchasers an
amount equal to LTM Fee Revenue multiplied by 1.40.
(c) For purposes of
this Agreement, “LTM Fee Revenue” means the fee revenue (excluding net interest
income but including money market fund fees) generated by all remaining
Serviced Appointments in the last full twelve-month period prior to the time
the Sellers elect to exercise their termination right pursuant to this Section
7.2.2.
7.2.3
Effect of Partial Terminations. Upon the earlier to occur
of (a) the assignment of any Serviced Appointment to the Purchasers or the
effectiveness of the appointment of another person as the Appointed Trustee
under the terms of the Serviced Corporate Trust Contract related to such
Serviced Appointment, or (b) the termination in accordance with its terms of
any Serviced Corporate Trust Contract and the resulting termination of the
Sellers’ duties as Appointed Trustee thereunder, the Purchasers’ duties and obligations
hereunder with respect to such Serviced Appointment shall terminate; provided,
however, that nothing in this Section 7.2.3 shall affect the
Purchasers’ or Sellers’ obligations under Article 8 with respect to any
such Serviced Corporate Trust Contract or Serviced Appointment.
8.
Indemnity
8.1
Indemnification by the Purchasers. Each of the Purchasers,
severally and jointly, shall indemnify, defend and hold harmless, without
duplication, each Seller and each of the Sellers’ Affiliates, and each of their
respective officers, employees, agents and representatives (collectively, the “Seller
Indemnified Parties”), from and against all Losses that such Seller
Indemnified Party may at any time suffer or incur, or become subject to that,
directly or indirectly, arise out of or relate to (a) any Assumed
Servicing Liability, (b) any failure by the Purchasers to perform their
Serviced Duties and other obligations under this Agreement in accordance with
the terms hereof or any other breach or violation by the Purchasers of the
terms hereof, (c) any action or omission of the Purchasers or their
Affiliates or their agents (including such agents appointed pursuant to Section
3.6 hereof) with respect to any Serviced Appointment, whether pursuant
hereto or to a Serviced Corporate Trust Contract or otherwise, or (d) the
Sellers’ role as backup advancing agent with respect to any Corporate Trust
Contract pursuant to clause (c) of the definition of “Retained Duty” (except to
the extent the Sellers negligently failed to make a backup advance as required
pursuant to such Retained Duty); provided, however, that the
Purchasers shall not be required to indemnify any Seller for any matter which
would require indemnification of the Purchasers by any Seller under Section
8.2.
8.2
Indemnification by the Sellers. Each of the Sellers,
severally and jointly, shall indemnify, defend and hold harmless, without
duplication, the Purchasers, each of the Purchasers’ Affiliates and each of
their respective officers, employees, agents and representatives (collectively,
the “Purchaser Indemnified Parties,” and together with the Seller
Indemnified Parties, the “Indemnified Parties”), from and against all
Losses that such Purchaser Indemnified Party may at any time suffer or
incur, or become subject to, that, directly or indirectly, arise out of or
relate to (a) any failure by the Sellers to perform their obligations under
this Agreement in accordance with the terms hereof, or any other breach or
violation by the Sellers of the terms hereof, (b) the exercise by the Sellers
of any right, power or discretion in relation to a Serviced Appointment,
including (i) with respect to any Retained Duties (except to the extent the
Sellers were acting in accordance with the instructions of the Purchasers in
performing the Retained Duties or were acting as backup advancing agent
pursuant to clause (c) of the definition of “Retained Duty”; provided that
Sellers shall indemnify the Purchaser Indemnified Parties from and against all
Losses that such Purchaser Indemnified Party may at any time suffer or incur,
or become subject to, that, directly or indirectly, arise out of or relate to
any Losses arising out of or relate to the Sellers’ negligent failure to make a
backup advance as required pursuant to such Retained Duty) or (ii) with respect
to any Excluded Appointment, the matters for which Seller and its Affiliates
are responsible pursuant to Section 3.9 and (c) any action taken or omitted to
be taken by the applicable Purchaser pursuant to and in accordance with a
written direction given by any Seller (other than pursuant to Section 3.4.6),
including any Specified Action taken (or omitted to be taken) by the Purchasers
at the direction of the Sellers pursuant to Section 3.9, in each case of
this clause (c) except to the extent the applicable Purchaser was negligent in
taking or omitting to take such action.
8.3
Claims Procedure.
8.3.1
Notification by the Indemnified Party. If any
Indemnified Party becomes aware of any fact, matter or circumstance that has
given or may reasonably be expected to give rise to a claim for indemnification
under this Article 8, the Indemnified Party shall at its own expense
promptly (and in no event later than ten (10) Business Days after the
applicable Indemnified Party becoming so aware) notify the Indemnifying Party
in writing of any claim in respect of which indemnity may be sought under this Article
8 (including any pending or threatened claim or demand by a third party
(including any Tax Authority)), that the applicable Indemnified Party has
determined has given or could reasonably give rise to a right of
indemnification under this Agreement (including a pending or threatened claim
or demand asserted by a third party against the Indemnified Party, whether by
litigation, by arbitration, as a result of an investigation, or otherwise
(each, a “Third-Party Claim”)), setting out the provisions under this
Agreement on which such claim is based, and such other information as is
reasonably necessary to enable the Indemnifying Party to assess the merits of
the potential claim, to act to preserve evidence and to make such provision as
it may consider necessary (including details of the legal and factual basis of
the claim and the evidence on which the party relies (including where the claim
is the result of a Third-Party Claim, evidence of the Third-Party Claim) and,
to the extent reasonably ascertainable, setting out its estimate of the amount
of Losses which are, or are to be, the subject of the claim) and the
Indemnified Party shall keep the Indemnifying Party reasonably and promptly
informed of any developments (including additional information which may become
available to it) in respect of such facts, matters or circumstances; provided,
however, that any failure or delay in providing such notice shall not
release the Indemnifying Party from any of its obligations under this Article
8 except to the extent the Indemnifying Party is prejudiced by such failure
or delay.
8.3.2
Cooperation by the Indemnified Party. The Indemnified Party shall
reasonably cooperate with and assist the Indemnifying Party in determining the
validity of any claim for indemnity by the Indemnified Party and in defending
against a Third-Party Claim. In connection with any fact, matter, event
or circumstance that may give rise to a claim against any Indemnifying Party
under this Agreement, the Indemnified Party shall ensure that each relevant
member of the Indemnified Party’s Group: (i) shall
preserve all material evidence relevant to the claim to the extent within the
control of the Indemnified Party’s Group, (ii) shall allow the
Indemnifying Party to investigate the fact, matter, event or circumstance
alleged to give rise to such claim and whether and to what extent any amount is
payable in respect of such claim, and (iii) shall (at the Indemnified
Party’s expense) disclose to the Indemnifying Party all material of which it is
aware which relates to the claim and provide, and procure that any other
relevant members of the Indemnified Party’s Group shall provide (at the
Indemnified Party’s expense), all such information and assistance, including
reasonable access to premises and personnel, and the right to examine and copy
or photograph any assets, accounts, documents and records, as the Indemnifying
Party may reasonably request, subject to the Indemnifying Party agreeing in
such form as the Indemnified Party may reasonably require to keep all such
information confidential and to use it only for the purpose of investigating
and defending the claim in question; provided that the foregoing shall
not require the Indemnified Party to disclose any documents or information that
may be reasonably expected to result in a violation of applicable Law or the
loss or waiver of any attorney-client, work product or similar legal privilege;
provided further that the Indemnified Party and the Indemnifying Party
shall work in good faith to put in place appropriate substitute disclosure
arrangements to permit such disclosure without such violation, loss or waiver.
8.3.3
Assumption of Defense of a Third-Party Claim. Upon receipt
of a notice of a claim for indemnity from an Indemnified Party pursuant to Section
8.3.1 in respect of a Third-Party Claim, the Indemnifying Party may,
by notice to the Indemnified Party delivered within twenty (20) Business Days
of the receipt of notice of such Third-Party Claim, assume the defense and
control of any Third-Party Claim, with its own counsel and at its own expense,
but shall allow the Indemnified Party a reasonable opportunity to participate
in the defense of such Third-Party Claim with its own counsel and at its own
expense (subject to the Indemnifying Party agreeing in writing that it is
obligated to indemnify the Indemnified Party pursuant to, and subject to the
limitations set forth in, this Article 8);provided, however, the
Indemnifying Party shall not be entitled to assume the defense (unless
otherwise agreed to in writing by the Indemnified Party) of any criminal or
regulatory action or claim, any claim seeking material non-monetary remedies,
or any claim where the indemnifiable amount, when taken together with all
other outstanding claims for indemnification, would reasonably be expected to
exceed twice the maximum amount for which the Indemnifying Party can be liable
pursuant to this Article 8. The Indemnifying Party shall not, without the
prior written consent of the Indemnified Party (which consent shall not be
unreasonably withheld, conditioned or delayed), consent to a settlement,
compromise or discharge of, or the entry of any judgment arising from, any
Third-Party Claim, unless such settlement, compromise, discharge or entry of any
judgment (i) does not involve any finding or
admission of any violation of Law or admission of any wrongdoing by the
Indemnified Party and (ii) contains, as a condition of any settlement,
compromise, discharge, entry of judgment (if applicable), or other resolution,
an unconditional release of each Indemnified Party from any and all Liabilities
in respect of such Third-Party Claim.
8.3.4
The Indemnified Party shall not settle, compromise or consent to the
entry of any judgment with respect to any claim or demand for which it is
seeking indemnification from the Indemnifying Party or admit to any liability
(or to actions or omissions which could reasonably be expected to result in
such liability) with respect to such claim or demand without the prior written
consent of the Indemnifying Party (which consent shall not be unreasonably
withheld, conditioned or delayed). Notwithstanding anything to the
contrary contained in this Article 8, no Indemnifying Party shall
have any liability under this Article 8 for any Losses arising out of or
in connection with any Third-Party Claim that is settled or compromised by an
Indemnified Party without the consent of such Indemnifying Party.
8.3.5
For purposes of this Article 8, (a) the applicable
Purchaser shall act on behalf of any Purchaser Indemnified Party and (b) the
applicable Seller shall act on behalf of any Seller Indemnified Party.
Without limiting the generality of the foregoing, any claims made by an
Indemnified Party under or in connection with this Agreement must be made
through the applicable Purchaser (in case of any Purchaser Indemnified Party
being the Indemnified Party) or the applicable Seller (in case of any Seller
Indemnified Party being the Indemnified Party).
8.4
Mitigation of Losses. The Indemnified Party shall
procure that all reasonable steps are taken and all reasonable assistance is
given (including the taking of any actions reasonably requested by an
Indemnifying Party) to avoid or mitigate any Losses, which in the absence of
mitigation might give rise to or increase a Loss in respect of any claim under
this Article 8. Without limiting the foregoing, the Purchasers and the
Sellers shall seek and collect any indemnification, reimbursement or other recovery
of Losses that may be available under any applicable Corporate Trust Contract
in accordance with Section 4.2 and the applicable provisions of
the Purchase Agreement.
8.5
No Duplication. The remedies provided in this Article 8
shall not be duplicative of any remedy available under the indemnification
provisions of the Purchase Agreement.
9.
Additional Terms
9.1
Notices.
9.1.1
Any notice, request, claim, demand or other communication in connection
with this Agreement (each, a “Notice”) shall be:
(a)
in writing in English; and
(b)
delivered by hand, registered mail or by courier using an
internationally recognized courier company, or transmitted by email.
9.1.2
Notices to the Sellers shall be delivered to the notice recipients
designated on Annex B.
9.1.3
Notices to the Purchasers shall be delivered to the notice recipients
designated on Annex B.
9.1.4
A Notice shall be effective upon receipt and shall be deemed to have
been received:
(a)
if delivered by hand, registered post or courier, at the time of
delivery; or
(b)
if sent by email, upon confirmation by telephone, fax or email from the
receiving party (or its legal counsel) of receipt thereof (provided that
if such confirmation is made by email, such confirmation shall only be deemed
to have been made if such confirmatory email makes specific reference to this Section
9.1), excluding, however, any answer or confirmation automatically
generated by electronic means (such as out-of-office replies).
For the
avoidance of doubt, all Notices hereunder must be delivered in accordance with
the terms of this Section 9.1, and delivery of any Notice to any party
hereunder by or on behalf of any party hereunder by any other means shall not
be effectively delivered to such party for purposes of this Agreement.
9.2
Further Assurances. Each of the parties shall from time to
time execute, or procure the execution of, such documents and instruments as
any party may reasonably require to implement the terms and provisions of this
Agreement.
9.3
Confidential Supervisory Information. Notwithstanding any
other provision of this Agreement, no disclosure, representation or warranty
shall be made (or other action taken) pursuant to this Agreement that would
involve the disclosure of confidential supervisory information (including
confidential supervisory information as defined in 12
C.F.R. § 261.2(c)) of a Government
Authority by any party to this Agreement to the extent prohibited by
applicable Law. To the extent legally permissible, appropriate substitute
disclosures or actions shall be made or taken under circumstances in which the
limitations of the preceding sentence apply.
9.4
Sale of Trust Business. The Purchasers shall be permitted
to assign this Agreement to any person acquiring all or substantially all of
the corporate trust business of the Purchasers (or all or substantially all of
the assets thereof or any entities owning such business or assets), whether
structured as an asset sale, merger, change of control or otherwise, subject to
the prior consent of the Sellers; provided, that such consent shall not
be unreasonably withheld, conditioned or delayed if the Sellers have reasonable
assurance that such person acquiring all or substantially all of the corporate
trust business (a) will have (either by itself or through its Affiliates)
credit ratings, capitalization and creditworthiness no less than those of
Purchasers (taking into account the guaranty provided by Guarantor pursuant to Section
9.5), (b) will provide a level of service quality no less than the service
quality provided by the Purchasers, (c) will pose no greater regulatory or
reputational risks than the Purchasers and (d) will agree to use reasonable
best efforts to obtain the Authorizations required to Transfer the Serviced
Appointments to such person on terms and conditions that are no less favorable
to the Sellers than the obligations of the Purchasers set forth in the Purchase
Agreement with respect to such Transfers.
9.5
Guaranty.
9.5.1
Guarantor, in order to induce the Sellers to execute and deliver this Agreement,
hereby absolutely, unconditionally and irrevocably, as primary obligor and not
merely as surety, guarantees each and every covenant, agreement and other
obligation of the Purchasers, including (i) the due, punctual and full payment
of all amounts due and payable by the Purchasers to the Sellers under or
arising out of this Agreement and (ii) the due and punctual performance, when
and as due, of all obligations of the Purchasers under or arising out of this
Agreement, in each case, subject to any and all limitations under this
Agreement and the Purchase Agreement on the Purchasers’ covenants, agreements
and other obligations hereunder. The Sellers shall be entitled to enforce
any and all of the Purchasers’ obligations under this Agreement directly
against Guarantor and the liability of Guarantor for such obligations shall be
joint and several with the liability of the Purchasers for such obligations
hereunder.
9.5.2
This Guaranty is a guarantee of payment and performance, and not of
collection, and Guarantor acknowledges and agrees that this Guaranty is full
and unconditional, and no release or extinguishment of the Purchasers’
liabilities (other than in accordance with the terms of this Agreement or the
Purchase Agreement), whether by decree in any bankruptcy Proceeding or
otherwise, will affect the continuing validity and enforceability of this
Guaranty. The Purchasers hereby waives any right to require the Sellers,
as a condition of payment or performance by the Purchasers of any obligations
of the Purchasers hereunder, to proceed against the Purchasers or pursue any
other remedy whatsoever in the event that the Purchasers fails to perform its
obligations hereunder.
9.5.3
Guarantor represents and warrants to the Sellers that (i) Guarantor is
duly organized and validly existing under the Laws of Australia, and has full
corporate power and authority to execute and deliver this Guaranty, and to
perform its obligations hereunder, (ii) the execution, delivery and performance
by Guarantor have been approved by the requisite corporate action, (iii) no
other action on the part of Guarantor (or its equityholders) is necessary to
authorize the execution, delivery and performance by Guarantor of this
Guaranty, and (iv) this Guaranty has been duly executed and delivered by
Guarantor and, assuming the due authorization, execution and delivery of this
Agreement by the parties hereto, will be legal, valid and binding obligations
of Guarantor enforceable in accordance with its terms, subject to the
Bankruptcy and Equity Exception.
9.6
Assignment. Except as otherwise expressly provided in this
Agreement, no party may, without the prior written consent of the other party,
assign, grant any security interest over, hold on trust or otherwise transfer
the benefit of the whole or any part of this Agreement. Any attempted
assignment in violation of this Section 9.6 shall be null and void. This
Agreement shall be binding upon, shall inure to the benefit of, and shall be
enforceable by the parties hereto and their successors and permitted assigns.
9.7
No Third-Party Beneficiaries. Except as provided in Article 8,
this Agreement is for the sole benefit of the parties hereto and their
permitted assigns and nothing herein expressed or implied shall give or be
construed to give to any person, other than the parties hereto and such
assigns, any legal or equitable rights hereunder.
9.8
Whole Agreement
9.8.1
This Agreement, the Purchase Agreement and other Ancillary Agreements
contain the whole agreement between the parties relating to the subject matter
of this Agreement to the exclusion of any terms implied by Law which may be excluded
by contract and supersede any previous written or oral agreement between the
parties in relation to the matters dealt with herein and therein. The
parties acknowledge and agree that the provisions set forth in Annex A and
Annex B, which relate to matters including termination rights, data security,
confidentiality, and recovery and resolution matters, are incorporated herein.
9.8.2
Each party acknowledges that it has not been induced to enter this
Agreement by any representation, warranty, assurance, commitment, statement or
undertaking not expressly incorporated into this Agreement and agrees that it
will not contend to the contrary.
9.8.3
So far as is permitted by Law, other than in the case of actual or intentional
fraud by the Sellers, the Purchasers agree and acknowledge that their only
right and remedy in relation to any provision of this Agreement shall be for
breach of the terms of this Agreement pursuant to the procedures and subject to
the limitations set forth herein to the exclusion of (i) any right to rescind
this Agreement and (ii) any and all other rights and remedies (including those
in tort or arising under statute).
9.8.4
In the event of any inconsistency between the Purchase Agreement and
this Agreement, the provisions of the Purchase Agreement shall govern and
control.
9.9
Governing Law; Injunctive Relief; Consent to Jurisdiction; Waiver of
Trial by Jury.
9.9.1 THIS
AGREEMENT AND ANY NON-CONTRACTUAL OBLIGATIONS ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO ANY PRINCIPLES OF CONFLICTS OF
LAW THAT WOULD HAVE THE EFFECT OF GIVING EFFECT TO THE LAWS OF ANOTHER
JURISDICTION).
9.9.2
Each party acknowledges that it would be impossible to determine the
amount of damages that would result from any breach of any of the provisions of
this Agreement and that the remedy at Law for any breach, or threatened breach,
of any of such provisions would likely be inadequate and, accordingly, agrees
that each other party, in addition to any other rights or remedies which it may
have, shall be entitled to seek such equitable and injunctive relief as may be
available from any court of competent jurisdiction to compel specific
performance of, or restrain any party from violating, any of such provisions.
In connection with any action or Proceeding for equitable and injunctive relief
permitted hereunder, each party hereby waives the claim or defense that a
remedy at Law alone is adequate and, to the maximum extent permitted by Law,
agrees to have each provision of this Agreement specifically enforced against
it, without the necessity of posting bond or other security against it, and
consents to the entry of equitable and injunctive relief against it enjoining
or restraining any breach or threatened breach of such provisions of this
Agreement.
9.9.3
Each of the parties hereto (i) consents to submit itself to the personal
jurisdiction of the Federal District Court for the Southern District of New
York or the courts of the State of New York sitting in the Borough of Manhattan
in connection with any dispute that arises out of this Agreement or the Sale,
(ii) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and (iii)
agrees that it will not bring any action relating to this Agreement (or any
other agreement contemplated hereby) in any court other than the Federal
District Court for the Southern District of New York or the courts of the State
of New York sitting in the Borough of Manhattan unless venue would not be
proper under rules applicable in such courts. Notwithstanding the previous
sentence, a party may commence any such action in a court other than the
above-named courts solely for the purpose of enforcing an order or judgment
issued by one of the above-named courts.
9.9.4 EACH
PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT (OR ANY
OTHER AGREEMENT CONTEMPLATED HEREBY).
9.10 Counterparts.
This Agreement shall be valid, binding and enforceable against a party only
when executed by an authorized individual on behalf of the party by means of
(a) an electronic signature that complies with the federal Electronic
Signatures in Global and National Commerce Act, state enactments of the Uniform
Electronic Transactions Act, or any other relevant and applicable electronic
signatures law; (b) an original manual signature; or (c) a faxed, scanned, or
photocopied manual signature. Each electronic signature or faxed, scanned, or
photocopied manual signature shall for all purposes have the same validity,
legal effect, and admissibility in evidence as an original manual signature.
This Agreement may be executed in one or more counterparts, including via
facsimile or email (or any other electronic means such as “.pdf” or “.tiff”
files), each of which shall be deemed an original, and all of which shall
constitute one and the same Agreement.
9.11 Headings.
The heading references herein are for convenience purposes only, and shall not
be deemed to limit or affect any of the provisions hereof.
9.12 Severability.
The provisions of this Agreement shall be deemed severable and the invalidity
or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision of this
Agreement, or the application thereof to any person or any circumstance, is
invalid or unenforceable, (a) a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision
and (b) the remainder of this Agreement and the application of such provision to
other persons or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in
any other jurisdiction.
9.13 Amendments.
Any provision of this Agreement may be amended if, and only if, such amendment
is in writing and signed by and on behalf of the Seller Representative and the
Purchasers.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement by their duly authorized corporate officers as of the date first
above written.
SELLERS:
Wells Fargo Bank, N.A.
By:
/s/ Patricia Sutter
Name: Patricia Sutter
Title: Executive Vice President
Wells Fargo
Delaware Trust Company, N.A.
By:
/s/ Patricia Sutter
Name: Patricia Sutter
Title: Executive Vice President
PURCHASER:
COMPUTERSHARE TRUST COMPANY,
N.A.
By:/s/
Frank Madonna
Name: Frank Madonna
Title: President
GUARANTOR:
(solely for purposes of Section 9.5)
COMPUTERSHARE LIMITED
By: /s/ Stuart
Irving
Name: Stuart Irving
Title: CEO
Exhibit
A
Seller
Backup Advancing Procedures
With respect to backup advancing
performed by Seller as a Retained Duty hereunder, Seller and Purchaser agree to
perform the necessary functions consistent with the following:
1)
To the extent that the Purchaser is required pursuant to the terms of
the applicable Corporate Trust Contract to make any backup advance and has
failed to do so in accordance with the terms hereof, the Seller shall make such
backup advance when and as required by the terms of the applicable Corporate
Trust Contract. Upon making any such backup advance, the Seller shall be
entitled to reimbursement of any such backup advance from the applicable trust
or other securitization vehicle, with any applicable interest thereon, in the
same manner and priority as the Purchaser would have been entitled under the
applicable Corporate Trust Contract had it made such backup advance.
2)
The Purchaser shall notify the Seller via email to the notice recipient
designated on Annex B immediately once the Purchaser becomes aware of an
obligation to make any advance under a Corporate Trust Contract. If the
Purchaser fails to make any such required advance, the Purchaser shall
additionally notify the Seller of this failure via email to the notice
recipient designated on Annex B (x) with respect to a servicing advance,
promptly after such failure and (y) with respect to a P&I advance, no later
than 10:00 a.m. New York City time on the related distribution date, and in
each case shall immediately furnish to the Seller any information requested by
the Seller to make a determination regarding recoverability
thereof. Notwithstanding anything herein to the contrary, the
Seller shall not be required to make any advance that it determines would, if
made, constitute a nonrecoverable advance. The Seller shall be entitled
to conclusively rely on the Purchaser’s, or any applicable servicer’s
determination that an advance is or would be a nonrecoverable advance. Advances
required to be made by the Seller hereunder shall be made no later than:
(x) with respect to a required servicing advance, within ten (10) Business
Days following the Seller’s receipt of the above-required notice of the
Purchaser’s failure along with information requested by the Seller to make a
determination regarding recoverability thereof, and (y) with respect to a
required P&I advance, by 1:00 p.m., New York City time, on the related
distribution date. The Seller’s role and obligations hereunder do not eliminate
or reduce the Purchaser’s obligations to make any advances pursuant to the
applicable Corporate Trust Contract.
3)
The Seller shall be entitled to all of the same rights, protections,
immunities, and indemnities that the Purchaser is entitled to under the
applicable Corporate Trust Contract, as if it were the Purchaser.
ANNEX A
Servicing Agreement –
Additional Terms and Conditions
This Annex A to the Second Amended and Restated Servicing Agreement,
dated October 31, 2021 (the “Agreement”), among Wells Bank and Wells
Trust Company, as Sellers, the Bank Assets Purchaser and, upon execution of the
Joinder Agreement, the Delaware Trust Assets Purchaser, as Purchasers, and
Guarantor (solely for purposes of Section 9.5 of the Agreement), is incorporated
into and deemed part of the Agreement in all respects.
I.
DEFINITIONS
A.
A.
Capitalized Terms Generally. Capitalized terms used in this
Annex A and not otherwise defined herein have the meanings assigned to them in
the Agreement.
B.
B.
Defined Terms. In this Annex A, the following terms have
the meanings set forth below:
“Consulting Firm” has the meaning set forth in Section
II.A.4.
“Corrective Action Plan” has the meaning set forth in
Section II.A.2.
“Joint Remediation Committee” has the meaning set
forth in Section II.A.2.
“Judgment” has the meaning set forth in Section
II.C.
“Purchaser Personnel” means the Purchasers’, and each
Purchaser’s Affiliates’, officers, directors (or their equivalent), employees,
agents, and contractors of any kind.
“Regulator” means, with respect to any person, any
Government Authority charged with regulating, supervising or examining such
person and its Affiliates.
“Replacement Provider” has the meaning set forth in Section
II.D.1.
“Senior Executives” has the meaning set forth in Section
II.A.3.
“Services” means the services provided by the
Purchasers to the Sellers under the Agreement.
“Subject Matter Experts” has the meaning set forth in
Section II.A.2.
“Transition Effective Date” has the meaning set forth
in Section II.D.3.
II.
TERM AND TERMINATION
A.
A.
Termination Upon Major Default.
1.
Major Default. The Purchasers shall be considered to be in “Major
Default” in the event that (a) the Purchasers are in breach of their
obligations under the Agreement and (b) such breaches, individually or in the
aggregate, resulted or would reasonably be expected to result in (i) material
Losses to the Sellers or their Affiliates, (ii) material reputational harm to
the Sellers or their Affiliates, (iii) material and adverse regulatory
consequences to the Sellers or their Affiliates, for which, in each case of
clauses (i) through (iii), indemnification by the Purchasers pursuant to Article
8 of the Agreement would not be sufficient to remedy all damages incurred
by the Sellers and their Affiliates or (iv) if the Sellers reasonably
determine, based on the advice of counsel, that it would reasonably be expected
to be a violation of their fiduciary duties under applicable Law to not
terminate the Agreement, taking into account the indemnification by the
Purchasers pursuant to Article 8 of the Agreement; provided, that
the following breaches shall be excluded, and not taken into account, in
determining if a Major Default has occurred: (x) any breach to the extent
resulting from any action taken by the Purchasers pursuant to and in accordance
with written direction given by the Sellers and (y) any breach to the extent
arising out of or resulting from, directly or indirectly, a breach by the
Sellers of the Agreement, the Transition Services Agreement or the Purchase
Agreement.
2.
Joint Remediation Committee. If the Sellers (acting
reasonably) determine that the Purchasers have committed a Major Default, then,
at the election of the Sellers, within three (3) Business Days of the Sellers
providing the Purchasers written notice of such determination, the Sellers and
the Purchasers shall establish a joint remediation committee of designated
executives from the Sellers and the Purchasers (“Joint Remediation Committee”)
consisting of three (3) members of each of the Sellers and the
Purchasers. The Joint Remediation Committee shall be responsible for
overseeing the development of a mutually agreeable plan in accordance with
subsection 3 below to either (i) remediate any breaches giving rise to the
Major Default to the extent such breaches can be remediated and/or
(ii) prevent similar breaches from recurring in the future (clauses (i)
and (ii), a “Corrective Action Plan”). Each member of the Joint
Remediation Committee shall have sufficient authority on the part of his or her
respective party to make decisions relating to matters reviewed by the Joint
Remediation Committee, and shall be approved by the other party (such approval
not to be unreasonably delayed, conditioned or withheld). The Joint
Remediation Committee shall have access to Purchaser Personnel that are
primarily responsible for the area of the business relationship (such as
information technology, data security or regulatory) where the breaches giving
rise to the Major Default arise (such Purchaser Personnel, collectively, the “Subject
Matter Experts”). The Sellers and the Purchasers shall cause their
respective members on the Joint Remediation Committee to, and the Purchasers
shall cause the Subject Matter Experts to, act in good faith in connection with
the development of the Corrective Action Plan.
3.
Corrective Action Plan. Within fifteen (15) Business Days
following the establishment of the Joint Remediation Committee, the Purchasers,
in consultation with the Sellers, shall prepare and submit to the Joint
Remediation Committee an initial draft of the Corrective Action Plan. The
parties shall work in good faith through the Joint Remediation Committee to
finalize the Corrective Action Plan within fifteen (15) Business Days of the
Purchasers’ submission of the initial draft of the Correct Action Plan.
At the end of such period, if the Sellers
reasonably determine that the Corrective Action Plan proposed by the Purchasers
(as may be modified over the course of such period) would not reasonably be
expected to satisfactorily address the Major Default, then the Sellers may
escalate the issue to the Head of Commercial Capital (or equivalent leader of
any successor business unit) of the Seller Group and the Chief Executive
Officer of the Bank Assets Purchaser (the “Senior Executives”) and the
Senior Executives shall work collaboratively (including with the Joint
Remediation Committee) to develop a mutually agreeable Corrective Action Plan
within fifteen (15) Business Days.
4.
Consulting Firm. If at the end of such periods contemplated
by subsection 3 above, the parties do not mutually agree on a Corrective Action
Plan, then either party may refer the Corrective Action Plan to a mutually
agreed, nationally (U.S.) recognized consulting firm with applicable expertise
in such matters (the “Consulting Firm”) and each party shall execute any
reasonable engagement letter requested by such Consulting Firm. If the
Purchasers and the Sellers fail to agree on the choice of a Consulting Firm
within three (3) Business Days of either party electing to refer the Corrective
Action Firm to a Consulting Firm, then the Sellers and Purchasers shall each
select one nationally (U.S.) recognized consulting firm with applicable
expertise in such matters and those two consulting firms will select a third
nationally (U.S.) recognized consulting firm to be the Consulting Firm.
The fees and expenses of any Consulting Firms selected pursuant to this Section II.A.4
shall be borne equally by the Sellers, on the one hand, and the Purchasers, on
the other hand,.
5.
Third Party Dispute Resolution. The Consulting Firm shall (i)
consider only the items that are then disputed by the parties, (ii) shall be
bound by the terms of the Agreement and (iii) shall only make a determination
of such disputed matters in favor of the proposal made by the Purchasers or the
Sellers (as may be presented by each party to the Consulting Firm in writing,
which shall be shared with the other party) and shall not make an independent
proposal. The Consulting Firm shall prepare a written determination of
any disputed matters and deliver the determination to the Purchasers and the
Sellers within fifteen (15) Business Days after the date the Consulting Firm is
engaged. Each party shall cooperate fully with the Consulting Firm,
including by using reasonable best efforts to provide the information, data and
work papers to the extent permitted by applicable Law, so as to enable the
Consulting Firm to make a determination of the disputed items as quickly as
practicable. The Corrective Action Plan shall be finalized in accordance with
the Consulting Firm’s determination of the disputed matters.
6.
Interim Actions. In the case of a Material Default that causes
continuing damages to the Sellers for which indemnification by the Purchasers
pursuant to Article 8 of the Agreement would not be sufficient to remedy
all such damages, the Sellers and the Purchasers shall cooperate
in good faith to implement appropriate interim actions to mitigate such damages
until the Corrective Action Plan is finalized. The parties shall develop
and implement such interim actions on timelines that are commensurate with the
severity of the harm and that take into account the risks to the Sellers of
delay. The Purchasers shall use reasonable best efforts to mitigate the
adverse consequences on the Sellers of the Material Default until the
Correction Action Plan is finalized.
7.
Regulatory Matters. The parties will negotiate in good faith to
resolve regulatory criticisms or concerns expressed by the Office of the
Comptroller of the Currency or other U.S. federal or state banking Regulators
that can reasonably be addressed through a modification of the Agreement or
adoption of mutually agreeable policies or procedures to prevent or resolve a
Material Default described by clause (iii) of such definition, subject to
applicable legal requirements including restrictions on disclosing confidential
supervisory information.
8.
Implementation of Corrective Action Plan. After the Corrective
Action Plan is finalized, the Purchasers shall use reasonable best efforts to
implement the finalized Corrective Action Plan on the timeline set forth
therein and provide periodic reports (as provided for therein) to the Sellers
on the status of their implementation of the Corrective Action Plan.
9.
Termination. In the event that following a Major Default,
the Purchasers fail to comply in all material respects with the final
Corrective Action Plan on the terms and conditions set forth therein (including
such time periods as may be set forth therein), then the Sellers shall have the
right to terminate the Agreement by delivering a written notice to the
Purchasers; provided that if such Corrective Action Plan was to
remediate or correct a Major Default (or if the Corrective Action Plan was to
prevent similar breaches from recurring in the future) with respect to
specified Appointment(s) or business line(s), then such termination shall be effective
only with respect to such Appointment(s) or business line(s) as to which the
Purchasers failed to comply in all material respects with the requirements of
the final Corrective Action Plan, and the Agreement shall continue in full
force and effect with respect all other Serviced Appointments. Upon any
termination pursuant to this subsection 9, the Sellers shall pay to the
Purchasers an amount calculated in accordance with that certain side letter
delivered between the parties in connection with the amendment and restatement
of the Agreement.
B.
Insolvency.
1.
Termination by the Sellers. The Sellers may terminate the
Agreement in the event either Purchaser or the Guarantor (if any of the
proceedings with respect to the Guarantor in the following clauses (i) through
(iv) below would reasonably be expected to impair the ability of either
Purchaser to perform its obligations under the Agreement (including Article 8
of the Agreement and this Annex A) fully and on a timely basis) (i) becomes the
subject of any bankruptcy or other proceeding relating to its liquidation or
insolvency (if not dismissed within sixty (60) days of initial filing), or
is the subject of a receivership or conservatorship, (ii) files a voluntary
petition in bankruptcy or similar proceeding or admits in writing its inability
to pay its debts as they become due, (iii) makes a general assignment for the
benefit of creditors, or (iv) files a petition or an answer seeking
reorganization or an arrangement with creditors.
C. C.
Required Termination. If a court of competent jurisdiction or
Government Authority issues a final non-appealable order or judgment holding
that all or part of the Agreement or all or a part of the Services offered
under the Agreement are in violation of any Law (each, a “Judgment”),
the affected party has the right to terminate those portions of the Agreement
that are part of such Judgment by providing the other party with written notice
of its intent to terminate such portions of the Agreement, and subject to Section
II.E, such termination of such portions of the Agreement will be effective
as of the date specified in such notice.
D.
Obligations upon Termination.
1.
Replacement Provider. In the event the Agreement (or any
portion thereof) is terminated in accordance with this Article II,
the Sellers shall be responsible for engaging one or more qualified
replacement providers of the Services of the Serviced Appointments that are
subject to such termination (each, a “Replacement Provider”), which may
be any Seller, any other member of the Seller Group or any third party
acceptable to the Sellers. Upon request by the Sellers, the Purchasers shall
provide the Sellers with reasonable assistance in marketing the Services
subject to such termination to potential third party Replacement Providers,
including by providing any information reasonably requested by the Sellers; provided,
that any potential third party Replacement Provider shall have executed a
customary confidentiality agreement before any confidential information of the
Purchasers is disclosed by the Sellers to such potential third party
Replacement Provider.
2.
Actions by the Sellers. Upon termination of the Agreement (or any
portion thereof) in accordance with this Article II, with respect to any
Serviced Appointment subject to such termination, the Sellers may (A)
terminate, or consent to the termination of, any Serviced Corporate Trust
Contract relating to such Serviced Appointment, (B) sell, transfer, assign, or
otherwise dispose of any such Serviced Appointment, or resign (or consent to
removal) from any such Serviced Appointment, or (C) agree to do any of the
foregoing.
3.
Transition Services. The Purchasers will provide to the Sellers
termination assistance as reasonably requested in order to provide an orderly
transition following the termination of the Agreement (or any portion thereof),
and the Sellers will provide to the Purchasers reasonable cooperation and
assistance in connection therewith. In connection with this transition
assistance, the Purchasers and Sellers will reasonably cooperate in the
transition of the Services from the Purchasers to any Replacement Provider.
With respect to the Serviced Appointments subject to termination, the Sellers
shall provide the Purchasers with notice of the effective date (each, a “Transition
Effective Date”) of the transition of the Services to a Replacement
Provider. Notwithstanding any termination of the Agreement (or any portion
thereof) in accordance with this Article II, with respect to the
Serviced Appointments subject to termination, the rights and obligations of the
parties under the Servicing Agreement shall remain in effect until the
applicable Transition Effective Date.
E. E.
Survival of Certain Provisions. Upon termination of the
Agreement, (1) the rights and obligations of the parties under the
Agreement shall survive until the applicable Transition Effective Dates, (2) Article
8 of the Agreement shall survive for any Losses indemnifiable thereunder that
were incurred prior to the applicable Transition Effective Date until such time
as any claim for indemnification under the Agreement with respect to such
Losses is finally resolved, and (3) Article 9 of the Agreement, Section II
(including the obligation of the Sellers to make any termination payment owed
hereunder) shall survive termination of the Agreement. In addition, all
rights of action arising from or related to the Agreement that accrue prior to
such termination (or the applicable Transition Effective Date), and any
remedies for such claims, both legal and equitable, will survive such
termination.
Annex
B
Annex B has been omitted
in accordance with instruction 4 to Form 8-K. Annex B contains certain
provisions relating to vendor management, including with respect to data
security, business continuity plans, audit rights and compliance matters;
confidentiality and information security matters, purchase price terms under
the Purchase Agreement; recovery and resolution; and addresses of recipients of
notices delivered pursuant to the Agreement.