Benchmark Agent. (a) The Issuer hereby appoints the Collateral Manager, and the Collateral Manager hereby accepts the appointment as Benchmark Agent for purposes of determining from time to time at such intervals as it determines whether a Benchmark Transition Event has occurred for purposes of this Indenture and the Notes as set forth in Section 2.16. (b) The Benchmark Agent shall be entitled to receive, on each Payment Date, reimbursement for all reasonable out-of-pocket expenses incurred by it in the course of performing its obligations hereunder in the order specified in the Priority of Payments as set forth in Section 11.1 (or in such other manner in which Company Administrative Expenses are permitted to be paid under this Indenture). Such expenses shall include the reasonable compensation and out-of-pocket expenses, disbursements and advances of the Benchmark Agent’s agents, counsel, consultants, advisors and experts (provided that any out-of-pocket fees paid to the Benchmark Agent’s consultants, advisors or experts shall be limited to $75,000 over the life of the transaction). The payment obligations to the Benchmark Agent pursuant to this Section 7.1 shall survive the termination of this Indenture. If the Benchmark Agent is terminated pursuant to clause (j) below, the Benchmark Agent shall be entitled to be paid on the next succeeding Payment Date all expenses accruing to it to the date of such termination, resignation or removal in accordance with the Priority of Payments set forth in Section 11.1. (c) In the discharge of its obligations, the Benchmark Agent shall not be liable for actions taken or omitted to be taken unless such actions are taken or omitted to be taken by reason of the Benchmark Agent’s gross negligence in the performance of its obligations and duties under the Indenture or by reason of its grossly negligent disregard of those obligations or duties. The Issuer hereby waives and releases, subject to the foregoing, any and all claims with respect to any action taken or omitted to be taken with respect to a Benchmark Replacement, including determinations as to the occurrence of a Benchmark Transition Event or a Benchmark Replacement Date, the selection of a Benchmark Replacement, the determination of the applicable Benchmark Replacement Adjustment, and the determination and implementation of any Benchmark Replacement Conforming Changes. (d) The Benchmark Agent shall have no direct or indirect liability whatsoever to the holders of any interest in any Note, it being understood that the only remedies available to holders of the Notes in respect of any Benchmark Replacement will be the implementation via court order of a different Benchmark Replacement and the implementation of any court-ordered Benchmark Replacement Date, Benchmark Replacement Adjustment, and the determination and implementation of any Benchmark Replacement Conforming Changes and other potential remedies, but not any remedies against the Benchmark Agent. (e) The Note Administrator, Calculation Agent and any third party from whom the Benchmark Agent receives advice in connection with the discharge of its obligations as Benchmark Agent will be beneficiaries of this Section 7.20. (f) The Benchmark Agent shall have no responsibility in respect of any failure to select a Benchmark Replacement due to the unavailability of sufficient guidance from the Relevant Governmental Body or ISDA Definitions or from market practice (taking into account guidance from consultants, advisors or experts) or in the event the Benchmark Agent determines in its discretion that there is not otherwise an industry-accepted rate of interest, spread adjustment or methods for calculating a Benchmark Replacement. The Benchmark Agent shall be fully protected in acting in accordance with its understanding of the recommendations, selections, endorsements or any other guidelines provided by a Relevant Governmental Body or ISDA; provided, however, that the Benchmark Agent shall only be liable to the extent that it was grossly negligent. In the event the Benchmark Agent has to make determinations giving due consideration to industry-accepted standards or market practice, the Benchmark Agent shall, unless it has acted grossly negligent, be fully protected in making such determinations based on its understanding of current industry-accepted standards or market practice (it being understood that such standards or practices may evolve quickly and over time), and the Benchmark Agent may, in its sole discretion, refrain from performing its obligations until it determines that such industry-accepted standards or market practice exist to make such determinations. In all cases, the Benchmark Agent may consult with and shall be entitled to conclusively rely on the advice of legal counsel and the advice of consultants, advisors and experts with respect to any determination that the Benchmark Agent is required to make as Benchmark Agent and shall be protected if it acts in reliance upon such advice. (g) The Benchmark Agent shall incur no liability to anyone in acting upon any signature, instrument, statement, notice, resolution, request, direction, consent, order, certificate, report, opinion, bond or other document or paper reasonably believed by it to be genuine and believed by it to be signed by the proper party or parties. Subject to the provisions of Section 14.6, the Benchmark Agent may exercise any of its rights or powers hereunder or perform any of its duties hereunder either directly or by or through agents or attorneys, and the Benchmark Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it. The Benchmark Agent shall in no event have any liability for the actions or omissions of the Issuer, the Servicer, the Note Administrator or any other Person, and shall have no liability for any inaccuracy or error in any duty performed by it that results from or is caused by inaccurate, untimely or incomplete information or data received by it from the Issuer, the Servicer, the Note Administrator or another Person. (h) Under no circumstances shall the Benchmark Agent be liable for indirect, punitive, special or consequential damages under or pursuant to this Indenture, its duties or obligations hereunder or arising out of or relating to the subject matter hereof, even if the Benchmark Agent has been advised of the likelihood of such damages and regardless of the form of such action. Notwithstanding anything herein and without limiting the generality of any terms of Section 2.17 or this Section 7.20, the Benchmark Agent shall not have any liability to the extent of any expense, loss, damage, demand, charge or claim resulting from or caused by events or circumstances beyond the reasonable control of such party including the interruption, suspension or restriction of trading on or the closure of any securities markets, power or other mechanical or technological failures or interruptions, computer viruses, communications disruptions, work stoppages, natural disasters, fire, war, terrorism, riots, rebellions, or other similar acts. No provision of this Indenture shall require the Benchmark Agent to take any action that it believes to be contrary to applicable law or to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties thereunder if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. The Benchmark Agent shall not be deemed to have notice or knowledge of any provisions or terms of any Transaction Document to which it is not a party. (i) The Issuer shall, and hereby agrees to, indemnify, defend and hold harmless each of the Benchmark Agent, the Note Administrator, the Trustee, the Calculation Agent, the Servicer, the Special Servicer and each of their respective Affiliates, directors, officers, agents and employees from any and all losses, damages, liabilities, demands, charges, costs, expenses (including the reasonable fees and out-of-pocket expenses incurred in connection with the enforcement of this indemnity and including reasonable attorneys’ fees) incurred in connection with (i) in the case of the Benchmark Agent, the discharge of the obligations of the Benchmark Agent, other than for its own gross negligence (notwithstanding any other provision or standard of care referenced herein or in the Transaction Documents), and (ii) in the case of the Note Administrator, the Trustee, the Calculation Agent, the Servicer and the Special Servicer, their reliance upon the actions of the Benchmark Agent. With respect to the institution of any claims, disputes or lawsuits arising out of or in connection with the discharge of its obligations as Benchmark Agent, the Benchmark Agent will be entitled to receive, in addition to the reimbursement of expenses as described in clause (b) above, liquidated damages in an amount 1.5 times the aggregate out of pocket costs and expenses (including reasonable attorneys’ fees) otherwise owing to it pursuant to the foregoing indemnity. For the avoidance of doubt, all indemnities payable under this subsection and liquidated damages shall be uncapped and payable as Company Administrative Expenses in accordance with the Priority of Payments. (j) Subject to Section 7.1(k), the Benchmark Agent may resign its duties hereunder by providing the Issuer with 15 days’ prior written notice. Subject to Section 7.1(k), the Issuer may remove the Benchmark Agent for cause by providing the Benchmark Agent with at least 15 days’ prior written notice (with a copy to the Trustee, the Note Administrator, the Collateral Manager, the Servicer, the Special Servicer, the 17g-5 Information Provider (who will be required to promptly post such notice to the 17g-5 Website) and each Rating Agency) if (i) the Benchmark Agent shall default in the performance of any of its duties under this Indenture and, after notice of such default, shall not cure such default within 15 days (or, if such default cannot be cured in such time, shall not have given within 10 days such assurance of cure as shall be reasonably satisfactory to the Issuer), (ii) the Benchmark Agent is dissolved (other than pursuant to a consolidation, amalgamation or merger) or has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger), (iii) a court having jurisdiction in the premises shall enter a decree or order for relief, and such decree or order shall not have been vacated within 60 days, in respect of the Benchmark Agent in any involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for the Benchmark Agent or any substantial part of its property or order the winding-up or liquidation of its affairs or (iv) the Benchmark Agent shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, shall consent to the entry of an order for relief in an involuntary case under any such law, shall consent to the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator or similar official for the Benchmark Agent or any substantial part of its property, shall consent to the taking of possession by any such official of any substantial part of its property, shall make any general assignment for the benefit of creditors or shall fail generally to pay its debts as they become due. The Benchmark Agent agrees that if any of the events specified in clauses (ii), (iii) or (iv) shall occur, it shall give written notice thereof to the Issuer, the Trustee, the Note Administrator, the Collateral Manager, the Servicer, the Special Servicer, the 17g-5 Information Provider (who will be required to promptly post such notice to the 17g-5 Website) and each Rating Agency within three Business Days after the happening of such event. The Benchmark Agent shall cooperate with the Issuer and any successor Benchmark Agent, and take all reasonable steps requested to assist the Issuer in making an orderly transfer of the duties of the Benchmark Agent. (k) No resignation or removal of the Benchmark Agent pursuant to this Section shall be effective until a successor Benchmark Agent shall have been appointed by the Issuer that is reasonably acceptable to the Special Servicer. If a successor ▇▇▇▇▇▇▇▇▇ Agent does not take office within 15 days after the retiring Benchmark Agent resigns or is removed, the retiring Benchmark Agent, the Issuer or a Majority of the Controlling Class, may petition a court of competent jurisdiction for the appointment of a successor ▇▇▇▇▇▇▇▇▇ Agent at the expense of the Issuer. (l) The Benchmark Agent may be removed by the Issuer at any time with cause, or without cause upon 30 days’ written notice.
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Benchmark Agent. (a) The Issuer hereby appoints the Collateral Manager, and the Collateral Manager hereby accepts the appointment as Benchmark Agent for purposes of determining from time to time at such intervals as it determines whether a Benchmark Transition Event has occurred for purposes of this Indenture and the Notes as set forth in Section 2.16.
(b) The Benchmark Agent shall be entitled to receive, on each Payment Date, reimbursement for all reasonable out-of-pocket expenses incurred by it in the course of performing its obligations hereunder in the order specified in the Priority of Payments as set forth in Section 11.1 (or in such other manner in which Company Administrative Expenses are permitted to be paid under this Indenture). Such expenses shall include the reasonable compensation and out-of-pocket expenses, disbursements and advances of the Benchmark Agent’s agents, counsel, consultants, advisors and experts (provided that any out-of-pocket fees paid to the Benchmark Agent’s consultants, advisors or experts shall be limited to $75,000 over the life of the transaction). The payment obligations to the Benchmark Agent pursuant to this Section 7.1 shall survive the termination of this Indenture. If the Benchmark Agent is terminated pursuant to clause (j) below, the Benchmark Agent shall be entitled to be paid on the next succeeding Payment Date all expenses accruing to it to the date of such termination, resignation or removal in accordance with the Priority of Payments set forth in Section 11.1.
(c) In the discharge of its obligations, the Benchmark Agent shall not be liable for actions taken or omitted to be taken unless such actions are taken or omitted to be taken by reason of the Benchmark Agent’s gross negligence in the performance of its obligations and duties under the Indenture or by reason of its grossly negligent disregard of those obligations or duties. The Issuer hereby waives and releases, subject to the foregoing, any and all claims with respect to any action taken or omitted to be taken with respect to a Benchmark Replacement, including determinations as to the occurrence of a Benchmark Transition Event or a Benchmark Replacement Date, the selection of a Benchmark Replacement, the determination of the applicable Benchmark Replacement Adjustment, and the determination and implementation of any Benchmark Replacement Conforming Changes.
(d) The Benchmark Agent shall have no direct or indirect liability whatsoever to the holders of any interest in any Note, it being understood that the only remedies available to holders of the Notes in respect of any Benchmark Replacement will be the implementation via court order of a different Benchmark Replacement and the implementation of any court-ordered Benchmark Replacement Date, Benchmark Replacement Adjustment, and the determination and implementation of any Benchmark Replacement Conforming Changes and other potential remedies, but not any remedies against the Benchmark Agent.
(e) The Note Administrator, Calculation Agent and any third party from whom the Benchmark Agent receives advice in connection with the discharge of its obligations as Benchmark Agent will be beneficiaries of this Section 7.20.
(f) The Benchmark Agent shall have no responsibility in respect of any failure to select a Benchmark Replacement due to the unavailability of sufficient guidance from the Relevant Governmental Body or ISDA Definitions or from market practice (taking into account guidance from consultants, advisors or experts) or in the event the Benchmark Agent determines in its discretion that there is not otherwise an industry-accepted rate of interest, spread adjustment or methods for calculating a Benchmark Replacement. The Benchmark Agent shall be fully protected in acting in accordance with its understanding of the recommendations, selections, endorsements or any other guidelines provided by a Relevant Governmental Body or ISDA; provided, however, that the Benchmark Agent shall only be liable to the extent that it was grossly negligent. In the event the Benchmark Agent has to make determinations giving due consideration to industry-accepted standards or market practice, the Benchmark Agent shall, unless it has acted grossly negligent, be fully protected in making such determinations based on its understanding of current industry-accepted standards or market practice (it being understood that such standards or practices may evolve quickly and over time), and the Benchmark Agent may, in its sole discretion, refrain from performing its obligations until it determines that such industry-accepted standards or market practice exist to make such determinations. In all cases, the Benchmark Agent may consult with and shall be entitled to conclusively rely on the advice of legal counsel and the advice of consultants, advisors and experts with respect to any determination that the Benchmark Agent is required to make as Benchmark Agent and shall be protected if it acts in reliance upon such advice.
(g) The Benchmark Agent shall incur no liability to anyone in acting upon any signature, instrument, statement, notice, resolution, request, direction, consent, order, certificate, report, opinion, bond or other document or paper reasonably believed by it to be genuine and believed by it to be signed by the proper party or parties. Subject to the provisions of Section 14.6, the Benchmark Agent may exercise any of its rights or powers hereunder or perform any of its duties hereunder either directly or by or through agents or attorneys, and the Benchmark Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it. The Benchmark Agent shall in no event have any liability for the actions or omissions of the Issuer, the Servicer, the Note Administrator or any other Person, and shall have no liability for any inaccuracy or error in any duty performed by it that results from or is caused by inaccurate, untimely or incomplete information or data received by it from the Issuer, the Servicer, the Note Administrator or another Person.
(h) Under no circumstances shall the Benchmark Agent be liable for indirect, punitive, special or consequential damages under or pursuant to this Indenture, its duties or obligations hereunder or arising out of or relating to the subject matter hereof, even if the Benchmark Agent has been advised of the likelihood of such damages and regardless of the form of such action. Notwithstanding anything herein and without limiting the generality of any terms of Section 2.17 or this Section 7.20, the Benchmark Agent shall not have any liability to the extent of any expense, loss, damage, demand, charge or claim resulting from or caused by events or circumstances beyond the reasonable control of such party including the interruption, suspension or restriction of trading on or the closure of any securities markets, power or other mechanical or technological failures or interruptions, computer viruses, communications disruptions, work stoppages, natural disasters, fire, war, terrorism, riots, rebellions, or other similar acts. No provision of this Indenture shall require the Benchmark Agent to take any action that it believes to be contrary to applicable law or to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties thereunder if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. The Benchmark Agent shall not be deemed to have notice or knowledge of any provisions or terms of any Transaction Document to which it is not a party.
(i) The Issuer shall, and hereby agrees to, indemnify, defend and hold harmless each of the Benchmark Agent, the Note Administrator, the Trustee, the Calculation Agent, the Servicer, the Special Servicer and each of their respective Affiliates, directors, officers, agents and employees from any and all losses, damages, liabilities, demands, charges, costs, expenses (including the reasonable fees and out-of-pocket expenses incurred in connection with the enforcement of this indemnity and including reasonable attorneys’ fees) incurred in connection with (i) in the case of the Benchmark Agent, the discharge of the obligations of the Benchmark Agent, other than for its own gross negligence (notwithstanding any other provision or standard of care referenced herein or in the Transaction Documents), and (ii) in the case of the Note Administrator, the Trustee, the Calculation Agent, the Servicer and the Special Servicer, their reliance upon the actions of the Benchmark Agent. With respect to the institution of any claims, disputes or lawsuits arising out of or in connection with the discharge of its obligations as Benchmark Agent, the Benchmark Agent will be entitled to receive, in addition to the reimbursement of expenses as described in clause (b) above, liquidated damages in an amount 1.5 times the aggregate out of pocket costs and expenses (including reasonable attorneys’ fees) otherwise owing to it pursuant to the foregoing indemnity. For the avoidance of doubt, all indemnities payable under this subsection and liquidated damages shall be uncapped and payable as Company Administrative Expenses in accordance with the Priority of Payments.
(j) Subject to Section 7.1(k), the Benchmark Agent may resign its duties hereunder by providing the Issuer with 15 fifteen (15) days’ prior written notice. Subject to Section 7.1(k), the Issuer may remove the Benchmark Agent for cause by providing the Benchmark Agent with at least 15 fifteen (15) days’ prior written notice (with a copy to the Trustee, the Note Administrator, the Collateral Manager, the Servicer, the Special Servicer, the 17g-5 Information Provider (who will be required to promptly post such notice to the 17g-5 Website) and each Rating Agency) if (i) the Benchmark Agent shall default in the performance of any of its duties under this Indenture and, after notice of such default, shall not cure such default within 15 fifteen (15) days (or, if such default cannot be cured in such time, shall not have given within 10 ten (10) days such assurance of cure as shall be reasonably satisfactory to the Issuer), (ii) the Benchmark Agent is dissolved (other than pursuant to a consolidation, amalgamation or merger) or has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger), (iii) a court having jurisdiction in the premises shall enter a decree or order for relief, and such decree or order shall not have been vacated within 60 sixty (60) days, in respect of the Benchmark Agent in any involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for the Benchmark Agent or any substantial part of its property or order the winding-up or liquidation of its affairs or (iv) the Benchmark Agent shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, shall consent to the entry of an order for relief in an involuntary case under any such law, shall consent to the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator or similar official for the Benchmark Agent or any substantial part of its property, shall consent to the taking of possession by any such official of any substantial part of its property, shall make any general assignment for the benefit of creditors or shall fail generally to pay its debts as they become due. The Benchmark Agent agrees that if any of the events specified in clauses (ii), (iii) or (iv) shall occur, it shall give written notice thereof to the Issuer, the Trustee, the Note Administrator, the Collateral Manager, the Servicer, the Special Servicer, the 17g-5 Information Provider (who will be required to promptly post such notice to the 17g-5 Website) and each Rating Agency within three (3) Business Days after the happening of such event. The Benchmark Agent shall cooperate with the Issuer and any successor Benchmark Agent, and take all reasonable steps requested to assist the Issuer in making an orderly transfer of the duties of the Benchmark Agent.
(k) No resignation or removal of the Benchmark Agent pursuant to this Section shall be effective until a successor Benchmark Agent shall have been appointed by the Issuer that is reasonably acceptable to the Special Servicer. If a successor ▇▇▇▇▇▇▇▇▇ Agent does not take office within 15 fifteen (15) days after the retiring Benchmark Agent resigns or is removed, the retiring Benchmark Agent, the Issuer or a Majority of the Controlling Class, may petition a court of competent jurisdiction for the appointment of a successor ▇▇▇▇▇▇▇▇▇ Agent at the expense of the Issuer.
(l) The Benchmark Agent may be removed by the Issuer at any time with cause, or without cause upon 30 thirty (30) days’ written notice.
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