The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, further, that, in the event that the Special Servicer or Master Servicer, as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted. (b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder. (c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard. (d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 5 contracts
Sources: Pooling and Servicing Agreement (CSAIL 2016-C6 Commercial Mortgage Trust), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2015-Ubs8), Pooling and Servicing Agreement (CSAIL 2015-C3 Commercial Mortgage Trust)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so So long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) if a Special Servicing Loan Event occurs, advise the Special Servicer with respect to all Specially Serviced Loans, and (2) if a Special Servicing Loan Event has not occurred, advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b6.5(b) and the second and third paragraphs of this Section 6.09(a6.5(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 ten (10) Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 ten (10) Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s 's taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis and other information reasonably requested by the Controlling Class Representative from the Special Servicer unless such actions are part of an asset status report approved by the Controlling Class Representative (the “Major Decision Reporting Package”), which the Special Servicer will be required to deliver to the Controlling Class Representative within five (5) Business Days of the Special Servicer’s receipt of notice of the proposed action; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a so long as no Control Termination Event is continuing in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan)Certificateholders, the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)'s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no unless a Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a the Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may reasonably deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage the Loan Documents, applicable law, any related the Co-Lender Agreement (including the provisions regarding certain consultation rights with the Companion Loan Holders), applicable law or any intercreditor agreement, this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the Master Servicer’s 's and the Special Servicer’s 's obligation to act in accordance with the Accepted Servicing Standard, Practices or expose the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s 's or the Special Servicer’s 's responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests interest of the Certificateholders and/or Certificateholders. With respect to any action requiring the Serviced Companion Loan Holdersconsent of the Controlling Class Representative hereunder, such consent will be deemed given if the Controlling Class Representative does not object within ten (10) Business Days. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage the Loan Documents, the intercreditor agreementprovisions of the Code resulting in an Adverse REMIC Event, applicable law, the REMIC Provisions law or this Agreement, including without limitation, the Accepted Servicing StandardPractices, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 10.17 of this Agreement, the Rule 17g-5 Information Provider Rating Agency of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Accepted Servicing Standard Practices or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By Each Certificateholder acknowledges and agrees, by its acceptance of a Certificateits Certificates, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in . In the event that no Controlling Class Representative has been appointed or identified to the Servicer or the Special Servicer, as applicable, and the Servicer or Special Servicer, as applicable, has attempted to obtain such information from the Certificate Administrator, then, until such time as the new Controlling Class Representative is identified, the Servicer or the Special Servicer, as applicable, shall have no duty to consult with, provide notice to, or seek the approval or consent of any such Controlling Class Representative, as the case may be. After the occurrence and during the continuance of a Control Termination Event but, with respect to the Controlling Class Representative only, prior to the occurrence of a Consultation Termination Event, the Special Servicer shall consult with the Controlling Class Representative in connection with any Major Decision (and any other actions which otherwise require consultation with the Controlling Class Representative prior to a Consultation Termination Event hereunder) and consider alternative actions recommended by Controlling Class Representative in respect thereof. Such consultation will not be binding on the Special Servicer. In the event the Special Servicer receives no response from the Controlling Class Representative within 10 days following its written request for input on any required consultation, the Special Servicer shall not be obligated to consult with the Controlling Class Representative on the specific matter; provided, however, that the failure of the AB Whole Controlling Class Representative to respond shall not relieve the Special Servicer from consulting with the Controlling Class Representative on any future matters with respect to the Mortgage Loan, for . For so long as no Operating Advisor Consultation Event is continuing, the Special Servicer shall provide each Major Decision Reporting Package to the Operating Advisor promptly after the Special Servicer receives the Controlling Class Representative’s approval or deemed approval of such Major Decision Reporting Package. For so long as an Operating Advisor Consultation Event has occurred and is continuing, the Special Servicer shall provide each Major Decision Reporting Package to the Operating Advisor simultaneously upon providing such Major Decision Reporting Package to the Controlling Class Representative. With respect to any particular Major Decision and related Subordinate Companion Major Decision Reporting Package and any Asset Status Report, the Special Servicer shall make available to the Operating Advisor Servicing Officers with relevant knowledge regarding the Mortgage Loan Holder and such Major Decision and/or Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Major Decision and/or Asset Status Report and potential conflicts of interest and compensation with respect to such Major Decision and/or Asset Status Report. In addition, after the occurrence and during the continuance of an Operating Advisor Consultation Event, the Special Servicer shall consult with the Operating Advisor (telephonically or electronically) in connection with any proposed Major Decision (and such other matters that are subject to consultation rights of the Operating Advisor hereunder) and consider alternative actions recommended by the Operating Advisor, in respect thereof, provided that such consultation is on a non-binding basis. In the event that the Special Servicer receives no response from the Operating Advisor within ten (10) Business Days following the later of (i) its written request for input (which initial request will be required to include a Major Decision Reporting Package) on any required consultation and (ii) delivery of all such additional information reasonably requested by the Operating Advisor related Whole Loan Directing Holderto the subject matter of such consultation, the Special Servicer shall not be obligated to consult with the Operating Advisor on the specific matter; provided, however, that the failure of the Operating Advisor to respond on any specific matters shall not relieve the Special Servicer from its obligation to consult with the Operating Advisor on any future matter with respect to the Mortgage Loan. In connection with the Controlling Class Representative’s right to consent or consult or the Operating Advisor’s right to consult with respect to a Major Decision, as applicable, if the Special Servicer determines that action is necessary to protect the Property or the interests of the Certificateholders from potential harm if such action is not taken, or if a failure to take any such action at such time would be inconsistent with Accepted Servicing Practices, the Special Servicer may take actions with respect to the Property before the expiration of the applicable period for the Operating Advisor or Controlling Class Representative to respond as described in this section, if the Special Servicer reasonably determines in accordance with Accepted Servicing Practices that failure to take such actions before the expiration of such period would materially adversely affect the interest of the Certificateholders, and the Special Servicer has made a reasonable effort to contact the Operating Advisor or the Controlling Class Representative, as applicable. After the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative will not shall have no consultation or consent rights hereunder and shall have no right to receive any notices, reports or information (other than notices, reports or information required to be entitled delivered to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan all Certificateholders) or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loanas Controlling Class Representative. However, the Controlling Class Representative will not be entitled shall maintain the right to exercise any of its Voting Rights for the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to same purposes as any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing HolderCertificateholder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Class HRR Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator Registrar and to notify the Certificate Administrator Registrar of the transfer of any Control Eligible Class HRR Certificate (or the beneficial ownership of any Control Eligible Class HRR Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Class HRR Certificate (or the beneficial ownership interest in a Control Eligible Class HRR Certificate) to notify in writing the Certificate Administrator Registrar when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. The initial Controlling Class Representative and any subsequent Controlling Class Representative is hereby deemed to have agreed and acknowledged by virtue of its purchase of the Class HRR Certificates (or beneficial ownership interest in such Certificates) that its identity will be reported monthly by the Certificate Registrar in the Distribution Date Statement. Upon receipt of such notice, the Certificate Administrator Registrar shall notify the Special ServServicer, the Servicer, the Operating Advisor and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Class HRR Certificate. In addition, upon the request of the Servicer, th
Appears in 4 contracts
Sources: Trust and Servicing Agreement (3650R 2021-Pf1 Commercial Mortgage Trust), Trust and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2021-C60), Trust and Servicing Agreement (CSAIL 2021-C20 Commercial Mortgage Trust)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for For so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to (A) consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer or (B) itself be permitted to take any of the actions constituting a Major Decision as to which if, in either case, the Controlling Class Representative has objected to the action in writing within ten (10) Business Days (or in such shorter period as response is required under the case of a Mortgage Loan Documents) (or 30 days with respect to the determination of an Acceptable Insurance Default, twenty (20) daysunless earlier objected to by the Controlling Class Representative) after receipt of a written report (which at the written recommendation and analysis from option of the Special Servicer; provided Servicer may be in the form of an Asset Status Report) by the Special Servicer describing in reasonable detail (i) the background and circumstances requiring action of the Special Servicer and (ii) the proposed course of action recommended (the “Major Decision Reporting Package”) (provided, however, that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period (or twenty (20) day period, such shorter period as applicablea response is required under the Mortgage Loan Documents), then the Controlling Class Representative will shall be deemed to have approved such action); provided, provided further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan)Certificateholders, the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage the Whole Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may reasonably deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any the Mortgage Loan Documents, applicable law, any related the Co-Lender Agreement Agreement, applicable law or any intercreditor agreement, this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Accepted Servicing StandardPractices, or expose the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or materially reduce the Servicer’s or the Special Servicer’s, as applicable, rights hereunder, or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or Certificateholders. With respect to any action requiring the Serviced Companion consent of the Controlling Class Representative under this Agreement, such consent shall be deemed given if the Controlling Class Representative does not object within 10 Business Days (or such shorter period as response is required under the Mortgage Loan HoldersDocuments). In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any the Mortgage Loan Documents, the intercreditor agreement, applicable law, the provisions of the Code resulting in an Adverse REMIC Provisions Event or this Agreement, including without limitation, the Accepted Servicing StandardPractices, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 10.17 of this Agreement, the Rule 17g-5 Information Provider each Rating Agency of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Accepted Servicing Standard Practices or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will shall have no liability to the Trust Fund or the Certificateholders or any Companion Loan Holder for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error errors in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder Certificateholders that would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of negligent disregard of its obligations or its duties, in each case under this Agreement. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliateAffiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in . After the case occurrence and during the continuance of the AB Whole Loana Control Termination Event but, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, with respect to the Controlling Class Representative only, prior to the occurrence of a Consultation Termination Event, the Special Servicer shall consult on a non-binding basis with the Controlling Class Representative in connection with any Major Decision or Asset Status Report (and any other actions which otherwise require consultation with the Controlling Class Representative prior to a Consultation Termination Event hereunder) and consider alternative actions recommended by Controlling Class Representative in respect thereof. Such consultation will not be entitled binding on the Special Servicer. In the event the Special Servicer receives no response from the Controlling Class Representative within 10 Business Days (or such shorter period as response is required under the Mortgage Loan Documents) following its written request for input on any required consultation, the Special Servicer shall not be obligated to exercise any consult with the Controlling Class Representative on the specific matter; provided, however, that the failure of the rights in this Section 6.09 Controlling Class Representative to respond shall not relieve the Special Servicer from consulting with the Controlling Class Representative on any future matters with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, . The Special Servicer shall provide each Major Decision Reporting Package to the Operating Advisor simultaneously upon providing such Major Decision Reporting Package to the Controlling Class Representative will Representative. With respect to any particular Major Decision and related Major Decision Reporting Package and any Asset Status Report, the Special Servicer shall make available (remotely via electronic, telephonic or other mutually agreeable communication) to the Operating Advisor a servicing officer with relevant knowledge regarding the Whole Loan and such Major Decision, Major Decision Reporting Package and/or Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Major Decision, Major Decision Reporting Package and/or Asset Status Report and potential conflicts of interest and compensation. In addition, after the occurrence and during the continuance of an Operating Advisor Consultation Event, the Special Servicer shall consult on a non-binding basis with the Operating Advisor (remotely via electronic, telephonic or other mutually agreeable communication) in connection with any proposed Major Decision for which the Special Servicer has delivered to the Operating Advisor a Major Decision Reporting Package and consider alternative actions recommended by the Operating Advisor, in respect thereof, provided that such consultation is on a non-binding basis. In the event that the Special Servicer receives no response from the Operating Advisor within ten (10) Business Days following the later of (i) its written request for input on any required consultation (which such initial request shall include a Major Decision Reporting Package) and (ii) delivery of all such additional information reasonably requested by the Operating Advisor related to the subject matter of such consultation, the Special Servicer shall not be entitled obligated to exercise any consult with the Operating Advisor on the specific matter; provided, however, that the failure of the rights in this Section 6.09 Operating Advisor to respond on any specific matters shall not relieve the Special Servicer from its obligation to consult with the Operating Advisor on any future matter with respect to the WPC Department Store Portfolio Whole Loan Loan. In connection with the Controlling Class Representative’s right to consent or consult or the Operating Advisor’s right to consult with respect to a Major Decision, as applicable, if the Special Servicer determines that action is necessary to protect the Property or the interests of the Certificateholders from potential harm if such action is not taken, or if a failure to take any related REO Propertysuch action at such time would be inconsistent with Accepted Servicing Practices, the Special Servicer may take actions with respect to the Property before the expiration of the applicable period for the Operating Advisor or Controlling Class Representative to respond as described in this section, if the Special Servicer reasonably determines in accordance with Accepted Servicing Practices that failure to take such actions before the expiration of such period would materially adversely affect the interest of the Certificateholders, and instead all such rightsthe Special Servicer has made a reasonable effort to contact the Operating Advisor or the Controlling Class Representative, in addition to any other rights provided for under as applicable. Neither the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall will be required to take or refrain from taking any action pursuant to instructions from the Controlling Class Representative, or based upon advice from a Whole Loan Directing Holder due to any failure to approve an action by any such party, or Companion Loan Holder due to an objective by any such party that would cause any one of them either the Servicer or the Special Servicer to violate applicable law, the terms related Mortgage Loan Documents and this Agreement (including Accepted Servicing Practices). On the Closing Date, the initial Controlling Class Representative shall execute a certification substantially in the form of Exhibit K-4 to this Agreement. Upon the resignation or removal of the related Serviced Whole Loanexisting Controlling Class Representative, any successor Controlling Class Representative shall execute and deliver to the parties to this Agreement a certification substantially in the form of Exhibit K-4 to this Agreement prior to being recognized as the new Controlling Class Representative. After the occurrence and during the continuance of a Consultation Termination Event, the related Co-Lender AgreementControlling Class Representative shall have no consultation or consent rights hereunder and shall have no right to receive any notices, this Agreementreports or information (other than notices, including the Servicing Standard, reports or the REMIC Provisions information required to be delivered to all Certificateholders) or that would (i) expose the Master Servicerany other rights as Controlling Class Representative. However, the Special Servicer, Controlling Class Representative shall maintain the Depositor, a Mortgage Loan Seller, right to exercise its Voting Rights for the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to same purposes as any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standardother Certificateholder.
(dc) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator Registrar and to notify the Certificate Administrator Registrar of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Class of Control Eligible CertificateCertificates) to notify the Certificate Administrator Registrar when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator Registrar shall notify the Special ServServicer, the Servicer, the Operating Advisor and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Control Eligible Certificate. In addition, upon the request of the Servicer, the Special Servicer, the Operating Advisor or the Trustee, as applicable, the Certificate Registrar shall provide (on a reasonably prompt basis) the identity of the then-current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable), at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement, or otherwise at the expense of the requesting party and each of the Servicer, the Special Servicer, the Operating Advisor and the Trustee shall be entitled to rely on such information so provided by the Certificate Administrator. The initial Controlling Class Representative, and any subsequent Controlling Class Representative, is hereby deemed to have agreed a
Appears in 4 contracts
Sources: Trust and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2025-5c5), Trust and Servicing Agreement (BMO 2025-5c11 Mortgage Trust), Trust and Servicing Agreement (Benchmark 2025-V15 Mortgage Trust)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for For so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings meeting with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, provided further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable)Loan, the related Serviced Companion Loan Holder(s) Holder (as a collective whole as if such Certificateholders and, if applicable, the and related Serviced Companion Loan Holder(s) Holder constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of the Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, that the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so actedintercreditor agreement.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Master Servicer, the Operating Advisor and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Control Eligible Certificate. In addition, upon the request of the Master Servicer, the Special Servicer, the Operating Advisor or the Trustee, as applicable, the Certificate Administrator shall provide (on a reasonably prompt basis) the identity of the then-current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement or in connection with a request made by the Operating Advisor in connection with its obligation under Section 3.29(d)(ii) of this Agreement to deliver a copy of the Operating Advisor Annual Report to the Controlling Class Representative, and otherwise at the expense of the requesting party) of the Controlling Class to such requesting party. In the event of a change in the Controlling Class, the Certificate Administrator shall promptly contact Seer Capital Management, L.P. or, if applicable, any successor Controlling Class Representative or Controlling Class Certificateholder(s), and determine whether such entity is the Holder (or Beneficial Owner) of at least a majority of the Controlling Class (in effect after such change in Controlling Class) by Certificate Principal Amount. If at any time that Seer Capital Management, L.P. or any successor Controlling Class Representative or Controlling Class Certificateholder(s) is no longer the Holder (or Beneficial Owner) of at least a majority of the Controlling Class by Certificate Principal Amount and the Certificate Administrator has neither (i) received notice of the then-current Controlling Class Certificateholders of at least a majority of the Controlling Class by Certificate Principal Amount nor (ii) received notice of a replacement Controlling Class Representative pursuant to this Agreement, then a Control Termination Event and a Consultation Termination Event shall be deemed to have occurred and shall be deemed to continue until such time as the Certificate Administrator receives either such notice. Upon receipt of notice of a change in Controlling Class Representative, the Certificate Administrator shall promptly forward notice thereof to each other party to this Agreement.
(e) Once a Controlling Class Representative has been selected pursuant to clause (c) above, each of the Master Servicer, the Special Servicer, the Operating Advisor, the Depositor, the Certificate Administrator, the Trustee and each other Certificateholder (or Beneficial Owner, if applicable) shall be entitled to rely on such selection unless a majority of the Certificateholders of the Controlling Class, by Certificate Principal Amount, or such Controlling Class Representative shall have notified the Certificate Administrator, the Master Servicer and each other Certificateholder of the Controlling Class, in writing, of the resignation of such Controlling Class Representative or the selection of a new Controlling Class Representative. Upon receipt of written notice of, or other knowledge of, the resignation of a Controlling Class Representative, the Certificate Administrator shall request the Certificateholders of the Controlling Class to select a new Controlling Class Representative.
(f) If at any time a book-entry certificate belongs to the Controlling Class, the Certificate Administrator shall notify the related Beneficial Owner or Beneficial Owners (through the Depository, unless the Certificate Administrator shall have been previously provided with the name and address of such Beneficial Owner or Beneficial Owners) of such event and shall request that it be informed of any change in the identity of the related Beneficial Owner from time to time.
(g) Until it receives notice to the contrary, each of the Master Servicer, the Special Servicer, the Operating Advisor, the Depositor and the Trustee and the Certificate Administrator shall be entitled to rely on the most recent notification with respect to the identity of the Certificateholders of the Controlling Class and the Controlling Class Representative.
(h) Notwithstanding
Appears in 3 contracts
Sources: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2017-H1), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2014-Gc23), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2014-Gc22)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan During a Controlling Class Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingPeriod, the Controlling Class Representative shall be entitled to (1) if a Special Servicing Loan Event occurs, advise the Special Servicer with respect to all Specially Serviced Loans, and (2) if a Special Servicing Loan Event has not occurred, advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b6.5(b) and the second and third paragraphs of this Section 6.09(a6.5(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no during a Controlling Class Control Termination Event has occurred and is continuingPeriod, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, provided further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of during a Controlling Class Control Termination Event Period in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan)Certificateholders, the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision prior to, or after the termination of, a Controlling Class Control Period; provided however that, following the occurrence and during the continuance termination of a Controlling Class Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination EventPeriod, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance termination of a Controlling Class Consultation Termination EventPeriod) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special ServicerRepresentative. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan during a Controlling Class Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingPeriod, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage the Whole Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may reasonably deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage the Loan Documents, applicable law, any related the Co-Lender Agreement (including the provisions regarding certain consultation rights with the Companion Loan Holders), applicable law or any intercreditor agreement, this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Accepted Servicing StandardPractices, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan HoldersCertificateholders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage the Loan Documents, the intercreditor agreementprovisions of the Code resulting in an Adverse REMIC Event, applicable law, the REMIC Provisions law or this Agreement, including without limitation, the Accepted Servicing StandardPractices, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 10.17 of this Agreement, the Rule 17g-5 Information Provider Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Accepted Servicing Standard Practices or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will shall have no liability to the Trust Fund Fund, the Certificateholders or the Certificateholders Companion Loan Holders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) following the termination of a Controlling Class Control Period, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and ; (ii) during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Controlling Class Consultation Termination EventPeriod, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after following the occurrence and during the continuance termination of a Controlling Class Consultation Termination EventPeriod, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in . In the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the event that no Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect has been appointed or identified to the AB Whole Loan Servicer or any related REO Propertythe Special Servicer, as applicable, and instead all the Servicer or Special Servicer, as applicable, has attempted to obtain such rightsinformation from the Certificate Administrator, in addition to any other rights provided for under then the related Co-Lender AgreementServicer or the Special Servicer, as applicable, shall be exercised by have no duty to consult with, provide notice to, or seek the related Whole Loan Directing Holder; and (v) in the case approval or consent of the WPC Department Store Portfolio Whole Loan, the any such Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing HolderRepresentative.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Class D Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Class D Certificate (or the beneficial ownership of any Control Eligible Class D Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Class D Certificate (or the beneficial ownership interest in a Control Eligible Class D Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Servicer and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Class D Certificate. In addition, upon the request of the Servicer, the Special Servicer or the Trustee, as applicable, the Certificate Administrator shall provide (on a reasonably prompt basis) the identity of the then current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement, or otherwise at the expense of the requesting party and each of the Servicer, the Special Servicer and the Trustee shall be entitled to rely on such information so provided by the Certificate Administrator. If at any time that clients of Prima Capital Advisors LLC or any successor Controlling Class Representative or Controlling Class Certificateholder(s) is no longer the Holder (or Beneficial Owner) of at least a majority of the Controlling Class by Certificate Balance and the Certificate Registrar has neither (i) received notice of the then-current Controlling Class Certificateholders of at least a majority of the Controlling Class by Certificate Balance nor (ii) received notice of a replacement Controlling Class Representative pursuant to this Agreement, then a Control Termination Event and a Consultation Termination Event shall be deemed to have occurred and shall be deemed to continue until such time as the Certificate Administrator receives either such notice. Upon receipt of notice of a change in Controlling Class Representative, the Certificate Administrator shall promptly forward notice thereof to each other party to this Agreement.
(d) If at any time a book entry certificate belongs to the Controlling Class, the Certificate Administrator shall contact the related Beneficial Owner or Beneficial Owners (through the Depository, unless the Certificate Administrator shall have been previously provided with the name and address of such Beneficial Owner or Beneficial Owners) and shall request that it be informed of any change in the identity of the related Beneficial Owner from time to time.
(e) Immediately upon obtaining actual knowledge that the Controlling Class Certificateholder or Controlling Class Representative is a Borrower Affiliate, any Certificateholder, a Companion Loan Holder, the Controlling Class Representative if the Controlling Class Representative is not a Certificateholder (and only during a Controlling Class Control Period and Controlling Class Consultation Period), a Beneficial Owner or a prospective purchaser of a Certificate (or any investment manager of the foregoing), as the case may be, shall provide notice in the form of Exhibit Y-3 hereto to the Servicer, the Special Servicer, the Trustee and the Certificate Administrator, which such notice shall be physically delivered in accordance with Section 10.4 and Section 8.14(b) of this Agreement.
(f) Until it receives notice to the contrary, each of the Servicer, the Special Servicer the Depositor and the Trustee and the Certificate Administrator shall be entitled to rely on the most recent notification with respect to the identity of the Certificateholders of the Controlling Class and the Controlling Class Representative.
Appears in 3 contracts
Sources: Trust and Servicing Agreement (CSAIL 2016-C7 Commercial Mortgage Trust), Trust and Servicing Agreement (CSAIL 2016-C6 Commercial Mortgage Trust), Trust and Servicing Agreement (Morgan Stanley Capital I Trust 2016-Ubs9)
The Controlling Class Representative. (a) Other than with respect to (i) the C▇▇▇▇▇▇ River Plaza North Soho-Tribeca Grand Hotel Portfolio Whole Loan Loan, prior to any Whole Loan Control Appraisal Event and Event, (ii) the WPC Department Store Portfolio Westfield Wheaton Whole Loan, prior to the WPC Department Store Portfolio Westfield Wheaton Securitization Date, or (iii) any Excluded Loan then subject to an Exclusion Period, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 30 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 30 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to (i) the C▇▇▇▇▇▇ River Plaza North Soho-Tribeca Grand Hotel Portfolio Whole Loan, prior to any Whole Loan Control Appraisal Event, and (ii) the WPC Department Store Portfolio Westfield Wheaton Whole Loan, prior to the WPC Department Store Portfolio Westfield Wheaton Securitization Date, and (iii) any Excluded Loan then subject to an Exclusion Period, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this AgreementAgreement with respect to any Excluded Loan then subject to an Exclusion Period or, after the occurrence and during the continuance of any Control Termination Event, with respect to any Mortgage Loan (or Whole Loan) other than an Excluded Loan then subject to an Exclusion Period; (ii) other than with respect to any Excluded Loan then subject to an Exclusion Period, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and other than with respect to an Excluded Loan then subject to an Exclusion Period, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; and (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Master Servicer, the Operating Advisor and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Control Eligible Certificate. In addition, upon the request (which may be by email) of the Master Servicer, the Special Servicer, the Operating Advisor or the Trustee, as applicable, the Certificate Administrator shall provide (on a reasonably prompt basis) the identity of each Companion Loan Holder, the then-current Controlling Class and
Appears in 3 contracts
Sources: Pooling and Servicing Agreement (CSAIL 2015-C3 Commercial Mortgage Trust), Pooling and Servicing Agreement (CSAIL 2015-C2 Commercial Mortgage Trust), Pooling and Servicing Agreement (CSAIL 2015-C1 Commercial Mortgage Trust)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for For so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, and (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, provided further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable)Loan, the related Serviced Companion Loan Holder(s) Holder (as a collective whole as if such Certificateholders and, if applicable, the and related Serviced Companion Loan Holder(s) Holder constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, that the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so actedintercreditor agreement.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Master Servicer, the Operating Advisor and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Control Eligible Certificate. In addition, upon the request of the Master Servicer, the Special Servicer, the Operating Advisor or the Trustee, as applicable, the Certificate Administrator shall provide (on a reasonably prompt basis) the identity of the then-current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement or in connection with a request made by the Operating Advisor in connection with its obligation under Section 3.30(d)(ii) of this Agreement to deliver a copy of the Operating Advisor Annual Report to the Controlling Class Representative, and otherwise at the expense of the requesting party) of the Controlling Class to such requesting party. In the event of a change in the Controlling Class, the Certificate Administrator shall promptly contact LNR Securities Holdings, LLC or, if applicable, any successor Controlling Class Representative or Controlling Class Certificateholder(s), and determine whether such entity is the Holder (or Beneficial Owner) of at least a majority of the Controlling Class (in effect after such change in Controlling Class) by Certificate Principal Amount. If at any time that LNR Securities Holdings, LLC or any successor Controlling Class Representative or Controlling Class Certificateholder(s) is no longer the Holder (or Beneficial Owner) of at least a majority of the Controlling Class by Certificate Principal Amount and the Certificate Administrator has neither (i) received notice of the then-current Controlling Class Certificateholders of at least a majority of the Controlling Class by Certificate Principal Amount nor (ii) received notice of a replacement Controlling Class Representative pursuant to this Agreement, then a Control Termination Event and a Consultation Termination Event shall be deemed to have occurred and shall be deemed to continue until such time as the Certificate Administrator receives either such notice. Upon receipt of notice of a change in Controlling Class Representative, the Certificate Administrator shall promptly forward notice thereof to each other party to this Agreement.
(e) Once a Controlling Class Representative has been selected pursuant to clause (c) above, each of the Master Servicer, the Special Servicer, the Operating Advisor, the Depositor, the Certificate Administrator, the Trustee and each other Certificateholder (or Beneficial Owner, if applicable) shall be entitled to rely on such selection unless a majority of the Certificateholders of the Controlling Class, by Certificate Principal Amount, or such Controlling Class Representative shall have notified the Certificate Administrator, the Master Servicer and each other Certificateholder of the Controlling Class, in writing, of the resignation of such Controlling Class Representative or the selection of a new Controlling Class Representative. Upon receipt of written notice of, or other knowledge of, the resignation of a Controlling Class Representative, the Certificate Administrator shall request the Certificateholders of the Controlling Class to select a new Controlling Class Representative.
(f) If at any time a book-entry certificate belongs to the Controlling Class, the Certificate Administrator shall notify the related Beneficial Owner or Beneficial Owners (through the Depository, unless the Certificate Administrator shall have been previously provided with the name and address of such Beneficial Owner or Beneficial Owners) of such event and shall request that it be informed of any change in the identity of the related Beneficial Owner from time to time.
(g) Until it receives notice to the contrary, each of the Master Servicer, the Special Servicer, the Operating Advisor, the Depositor and the Trustee and the Certificate Administrator shall be entitled to rely on the most recent notification with respect to the identity of the Certificateholders of the Controlling Class and the Controlling Class Representative.
(h) Notwithstanding anything to the contrary contained herein, during such time as the Class E Certificates is the Controlling Class, the Holder of more than 50% of the Controlling Class Certificates (by Certificate Principal Amount) may waive its right to act as or appoint a Controlling Class Representative and to exercise any of the rights of the Controlling Class Representative o
Appears in 3 contracts
Sources: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2014-Gc19), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2014-Gc18), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2014-Gc18)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for For so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, further, that, in the event that the Special Servicer or Master Servicer, as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for For so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Master Servicer, the Operating Advisor and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Control Eligible Certificate. In addition, upon the request (which may be by email) of the Master Servicer, the Special Servicer, the Operating Advisor or the Trustee, as applicable, the Certificate Administrator shall provide (on a reasonably prompt basis) the identity of each Companion Loan Holder, the then-current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement or in connection with a request made by the Operating Advisor in connection with its obligation under Section 3.28(d)(ii) of this Agreement to deliver a copy of the Operating Advisor Annual Report to the Controlling Class Representative, and otherwise at the expense of the requesting party) of the Controlling Class to such requesting party, and each of the Master Servicer, Special Servicer, Operating Advisor and the Trustee shall be entitled to rely on such information so provided by the Certificate Administrator and shall be entitled to assume that the identity of the Controlling Class Representative has not changed absent notice of a replacement of the Controlling Class Representative by a majority of the Controlling Class, or the resignation of the then-current Control
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (CSAIL 2015-C3 Commercial Mortgage Trust), Pooling and Servicing Agreement (CSAIL 2015-C2 Commercial Mortgage Trust)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for For so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to advise (1) advise the Special Servicer with respect to all Specially Serviced Loans, Loans and (2) advise the Special Servicer with respect to non-Specially Serviced Performing Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable)Loan, the related Serviced Companion Loan Holder(s) Holder (as a collective whole as if such Certificateholders and, if applicable, the and related Serviced Companion Loan Holder(s) Holder constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreementIntercreditor Agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(ivi) - (iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, that the rights of the Controlling Class Representative are subject to the related Co-Lender Intercreditor Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Servthis
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2012-Gc8), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2012-Gc8)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for For so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Trust Loan, exercise consultation and consent rights (if any) and attend annual meetings meeting with an the Other Master Servicer and an the Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Trust Loan is entitled to such rights pursuant to the related CoNon-Lender Serviced Intercreditor Agreement. .. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, provided further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan)Certificateholders, the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan HoldersCertificateholders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, that the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so actedintercreditor agreement.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.[Reserved]
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Master Servicer and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Control Eligible Certificate. In addition, upon the request of the Master Servicer, the Special Servicer or the Trustee, as applicable, the Certificate Administrator shall provide the identity of the then-current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement, and otherwise at the expense of the requesting party) of the Controlling Class to such requesting party. In the event of a change in the Controlling Class, the Certificate Administrator shall promptly contact RREF CMBS AIV, LP or one of its Affiliates, or, if applicable, any successor Controlling Class Representative or Controlling Class Certificateholder(s), and determine whether such entity is the Holder (or Beneficial Owner) of at least a majority of the Controlling Class (in effect after such change in Controlling Class) by Certificate Principal Amount. If at any time that RREF CMBS AIV, LP or one of its Affiliates, or any successor Controlling Class Representative or Controlling Class Certificateholder(s) is no longer the Holder (or Beneficial Owner) of at least a majority of the Controlling Class by Certificate Principal Amount and the Certificate Administrator has neither (i) received notice of the then-current Controlling Class Certificateholders of at least a majority of the Controlling Class by Certificate Principal Amount nor (ii) received notice of a replacement Controlling Class Representative pursuant to this Agreement, then a Control Termination Event and a Consultation Termination Event shall be deemed to have occurred and shall be deemed to continue until such time as the Certificate Administrator receives either such notice. Upon receipt of notice of a change in Controlling Class Representative, the Certificate Administrator shall promptly forward notice thereof to each other party to this Agreement.
(e) Once a Controlling Class Representative has been selected pursuant to clause (c) above, each of the Master Servicer, the Special Servicer, the Operating Advisor, the Depositor, the Certificate Administrator, the Trustee and each other Certificateholder (or Beneficial Owner, if applicable) shall be entitled to rely on such selection unless a majority of the Certificateholders of the Controlling Class, by Certificate Principal Amount, or such Controlling Class Representative shall have notified the Certificate Administrator, the Master Servicer and each other Certificateholder of the Controlling Class, in writing, of the resignation of such Controlling Class Representative or the selection of a new Controlling Class Representative. Upon receipt of written notice of, or other knowledge of, the resignation of a Controlling Class Representative, the Certificate Administrator shall request the Certificateholders of the Controlling Class to select a new Controlling Class Representative.
(f) If at any time a book-entry certificate belongs to the Controlling Class, the Certificate Administrator shall notify the related Beneficial Owner or Beneficial Owners (through the Depository, unless the Certificate Administrator shall have been previously provided with the name and address of such Beneficial Owner or Beneficial Owners) of such event and shall request that it be informed of any change in the identity of the related Beneficial Owner from time to time.
(g) Until it receives notice to the contrary, each of the Master Servicer, the Special Servicer, the Operating Advisor, the Depositor and the Trustee and the Certificate Administrator shall be entitled to rely on the most recent notification with respect to the identity of the Certificateholders of the Controlling Class and the Controlling Class Representative.
(h) Notwithstanding anything to the contrary contained herein, during such time as the Class E Certificates is the Controlling Class, the Holder of more than 50% of the Controlling Class Certificates (by Certificate Principal Amount) may waive its right to act as or appoint a Controlling Class Representative and to exercise any of the rights of the Controlling Class Representative or to cause the exercise of the rights of the Controlling Class Representative as set forth in this Agreement by irrevocable written notice delivered to the Depositor, Certificate Administrator, Trustee, Master Servicer, Special Servicer and Operating Advisor (any such Holder or group of affiliated Holders that makes such an election, the “Opting-Out Party”). Any such waiver shall remain effective, and a Control Termination Event and a Consultation Termination Event shall be deemed to have occurred and shall be deemed to continue, with respect to such Holder and such Class until such time as the Opting-Out Party (i) sells a majority of the Class E Certificates (by Certificate Principal Amount) to an unaffiliated third party and (ii) certifies to the Depositor, Certificate Administrator, Trustee, Master Servicer, Special Servicer and Operating Advisor that (a) the Opting-Out Party retains no direct or indirect voting rights with respect to the Class E Certificates that it does not own, (b) there is no voting agreement between the Opting-Out Party and the transferee and (c) the Opting-Out Party retains no direct or indirect economic interest in the Class E Certificates (such sale and certification,
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2012-Gcj9), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2012-Gcj9)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so So long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) if a Special Servicing Loan Event occurs, advise the Special Servicer with respect to all Specially Serviced Loans, and (2) if a Special Servicing Loan Event has not occurred, advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b6.5(b) and the second and third paragraphs of this Section 6.09(a6.5(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 ten (10) Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 ten (10) Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s 's taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis and other information reasonably requested by the Controlling Class Representative from the Special Servicer unless such actions are part of an asset status report approved by the Controlling Class Representative (the “Major Decision Reporting Package”), which the Special Servicer will be required to deliver to the Controlling Class Representative within five (5) Business Days of the Special Servicer’s receipt of notice of the proposed action; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a so long as no Control Termination Event is continuing in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan)Certificateholders, the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)'s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no unless a Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a the Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may reasonably deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage the Loan Documents, applicable law, any related the Co-Lender Agreement (including the provisions regarding certain consultation rights with the Companion Loan Holders), applicable law or any intercreditor agreement, this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the Master Servicer’s 's and the Special Servicer’s 's obligation to act in accordance with the Accepted Servicing Standard, Practices or expose the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s 's or the Special Servicer’s 's responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests interest of the Certificateholders and/or Certificateholders. With respect to any action requiring the Serviced Companion Loan Holdersconsent of the Controlling Class Representative hereunder, such consent will be deemed given if the Controlling Class Representative does not object within ten (10) Business Days. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage the Loan Documents, the intercreditor agreementprovisions of the Code resulting in an Adverse REMIC Event, applicable law, the REMIC Provisions law or this Agreement, including without limitation, the Accepted Servicing StandardPractices, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 10.17 of this Agreement, the Rule 17g-5 Information Provider Rating Agency of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Accepted Servicing Standard Practices or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By Each Certificateholder acknowledges and agrees, by its acceptance of a Certificateits Certificates, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 2 contracts
Sources: Trust and Servicing Agreement (Wells Fargo Commercial Mortgage Securities Inc), Trust and Servicing Agreement (CSAIL 2020-C19 Commercial Mortgage Trust)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for For so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings meeting with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a the Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, provided further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable)Loan, the related Serviced Companion Loan Holder(s) Holder (as a collective whole as if such Certificateholders and, if applicable, the and related Serviced Companion Loan Holder(s) Holder constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, that the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so actedintercreditor agreement.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; and (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder or its designee is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Subordinate Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Master Servicer, the Operating Advisor and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Control Eligible Certificate. In addition, upon the request of the Master Servicer, the Special Servicer, the Operating Advisor or the Trustee, as applicable, the Certificate Administrator shall provide (on a reasonably prompt basis) the identity of the then-current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement or in connection with a request made by the Operating Advisor in connection with its obligation under Section 3.29(d)(ii) of this Agreement to deliver a copy of the Operating Advisor Annual Report to the Controlling Class Representative, and otherwise at the expense of the requesting party) of the Controlling Class to such requesting party. In the event of a change in the Controlling Class, the Certificate Administrator shall promptly contact E▇▇▇▇▇▇▇▇ Management Group, LLC or, if applicable, any successor Controlling Class Representative or Controlling Class Certificateholder(s), and determine whether such entity is the Holder (or Beneficial Owner) of at least a majority of the Controlling Class (in effect after such change in Controlling Class) by Certificate Principal Amount. If at any time that E▇▇▇▇▇▇▇▇ Management Group, LLC or any successor Controlling Class Representative or Controlling Class Certificateholder(s) is no longer the Holder (or Beneficial Owner) of at least a majority of the Controlling Class by Certificate Principal Amount and the Certificate Administrator has neither (i) received notice of the then-current Controlling Class Certificateholders of at least a majority of the Controlling Class by Certificate Principal Amount nor (ii) received notice of a replacement Controlling Class Representative pursuant to this Agreement, then a Control Termination Event and a Consultation Termination Event shall be deemed to have occurred and shall be deemed to continue until such time as the Certificate Administrator receives either such notice. Upon receipt of notice of a change in Controlling Class Representative, the Certificate Administrator shall promptly forward notice thereof to each other party to this Agreement.
(e) Once a Controlling Class Representative has been selected pursuant to clause (c) above, each of the Master Servicer, the Special Servicer, the Operating Advisor, the Depositor, the Certificate Administrator, the Trustee and each other Certificateholder (or Beneficial Owner, if applicable) shall be entitled to rely on such selection unless a majority of the Certificateholders of the Controlling Class, by Certificate Principal Amount, or such Controlling Class Representative shall have notified the Certificate Administrator, the Master Servicer and each other Certificateholder of the Controlling Class, in writing, of the resignation of such Controlling Class Representative or the selection of a new Controlling Class Representative. Upon receipt of written notice of, or other knowledge of, the resignation of a Controlling Class Representative, the Certificate Administrator shall request the Certificateholders of the Controlling Class to select a new Controlling Class Representative.
(f) If at any time a book-entry certificate belongs to the Controlling Class, the Certificate Administrator shall notify the related Beneficial Owner or Beneficial Owners (through the Depository, unless the Certificate Administrator shall have been previously provide
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2014-Gc21), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2014-Gc20)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for For so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) if a Special Servicing Loan Event occurs, advise the Special Servicer with respect to all Specially Serviced Loans, and (2) if a Special Servicing Loan Event has not occurred, advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b6.5(b) and the second and third paragraphs of this Section 6.09(a6.5(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, provided further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan)Certificateholders, the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating AdvisorRepresentative, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage the Trust Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may reasonably deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage the Loan Documents, applicable law, any related the Co-Lender Agreement (including Section 5(d) of the Co-Lender Agreement regarding certain consultation with the Companion Loan Holders), applicable law or any intercreditor agreement, this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Accepted Servicing StandardPractices, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan HoldersCertificateholders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage the Loan Documents, the intercreditor agreement, applicable law, the provisions of the Code resulting in an Adverse REMIC Provisions Event or this Agreement, including without limitation, the Accepted Servicing StandardPractices, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 10.17 of this Agreement, the Rule 17g-5 Information Provider Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Accepted Servicing Standard Practices or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will shall have no liability to the Trust Fund Fund, the Certificateholders or the Certificateholders Companion Loan Holders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Servicer and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Control Eligible Certificate. In addition, upon the request of the Servicer, the Special Servicer or the Trustee, as applicable, the Certificate Administrator shall provide (on a reasonably prompt basis) the identity of the then current Controlling Class and a list of the Certificateholders (or Beneficial Owners), if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement, or otherwise at the expense of the requesting party and each of the Servicer, the Special Servicer and the Trustee shall be entitled to rely on such information so provided by the Certificate Administrator. The Certificate Administrator, the Servicer and the Special Servicer will not be charged with knowledge of any Control Termination Event or Consultation Termination Event, in each case, resulting from an affiliation of the Controlling Class Representative or a majority of the Controlling Class Certificateholders (by Certificate Balance) with a Borrower Related Party, unless and until it shall have received notice of such occurrence from the Controlling Class Representative or a majority of the Controlling Class Certificateholders (by Certificate Balance) substantially in the form of Exhibit P upon which each party may conclusively rely. In the event of a change in the Controlling Class, the Certificate Administrator shall promptly contact the then-current Controlling Class Representative (if any) or Controlling Class Certificateholder(s), and determine whether such entity is the Holder (or Beneficial Owner) of at least a majority of the Controlling Class (in effect after such change in Controlling Class) by Certificate Balance. If at any time that the initial Holder (or Beneficial Owner) of at least a majority of the Controlling Class by Certificate Balance is no longer the Holder (or Beneficial Owner) of at least a majority of the Controlling Class by Certificate Balance and the Certificate Registrar has neither (i) received notice of the then current Controlling Class Certificateholders of at least a majority of the Controlling Class by Certificate Balance nor (ii) received notice of a replacement Controlling Class Representative pursuant to this Agreement, then a Control Termination Event and a Consultation Termination Event shall be deemed to have occurred and shall be deemed to continue until such time as the Certificate Administrator receives either such notice. Upon receipt of notice of a change in Controlling Class Representative, the Certificate Administrator shall promptly forward notice thereof to each other party to this Agreement.
(d) If at any time a book entry certificate belongs to the Controlling Class, the Certificate Administrator shall contact the related Beneficial Owner or Beneficial Owners (through the Depository, unless the Certificate Administrator shall have been previously provided with the name and address of such Beneficial Owner or Beneficial Owners) and shall request that it be informed of any change in the identity of the related Beneficial Owner from time to time.
(e) Until it receives notice to the contrary, each of the Servicer, the Special Servicer the Depositor and the Trustee and the Certificate Administrator shall be entitled to rely on the most recent notification with respect to the identity of the Certificateholders of the Controlling Class and the Controlling Class Representative.
(f) Notwithstanding anything to the contrary contained herein, the holder of more than 50% of the Certificates of the Controlling Class (by Certificate Balance) may, at any time, waive its right to act as or appoint a Controlling Class Representative and to exercise any of the rights of the Controlling Class Representative or cause the exercise of any of the rights of the Controlling Class Representative set forth in this Agreement, by irrevocable written notice delivered to the Depositor, Certificate Administrator, Trustee, Servicer and Special Servicer. Any such waiver will remain effective with respect to such holder and the Controlling Class until such time as that Certificateholder has (i) sold a majority of the Certificates of the Controlling Class (by Certificate Balance) to an unaffiliated third party and (ii) certified to the Depositor, Certificate Administrator, Trustee, Servicer and Special Servicer that (a) the transferor retains no direct or indirect voting rights with respect to the Certificates of the Controlling Class that it does not own, (b) there is no voting agreement between the transferee and the transferor and (c) the transferor retains no direct or indirect economic interest in the Controlling Class. Following any such transfer, the successor holder of more than 50% of the Certificates of the Controlling Class (by Certificate Balance) will again have the rights of the Controlling Class Representative as described herein without regard to any prior waiver by the predecessor Certificateholder. Such successor Certificateholder will also have the right to irrevocably waive its right to act as or appoint a Controlling Class Representative or to exercise any of the rights of the Controlling Class Representative or cause the exercise of any of the rights of the Controlling Class Representative. No such successor Certificateholder described above in this paragraph will have any consent rights with respect to the Whole Loan if a Special Servicing Loan Event exists at the time of its acquisition of a majority of the Certificates of the Controlling Class, until such Special Servicing Loan Event no longer exists. Whenever such an “opt-out” by a Controlling Class Certificateholder is in effect, a Control Termination Event and a Consultation Termination Event shall be deemed to have occurred and continue. The holder of more than 50% of the Certificates of the Controlling Class (by Certificate Balance) has waived its right to act as or appoint a Controlling Class Representative. As a result of such waiver, as of the Clo
Appears in 2 contracts
Sources: Trust and Servicing Agreement (GS Mortgage Securities Trust 2016-Gs3), Trust and Servicing Agreement (Gs Mortgage Securities Corp Ii)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for For so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to advise (1) advise the Special Servicer with respect to all Specially Serviced Loans, Mortgage Loans and (2) advise the Special Servicer with respect to non-Specially Serviced Mortgage Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, further, further that, in the event that the Special Servicer or Master ServicerServicer (in the event the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable)Loan, the related Serviced Companion Loan Holder(s) Holder (as a collective whole as if such Certificateholders and, if applicable, the and related Serviced Companion Loan Holder(s) Holder constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreementIntercreditor Agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, that the rights of the Controlling Class Representative are subject to the related Co-Lender Intercreditor Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; and (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder or its designee is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB any Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Intercreditor Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Intercreditor Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Master Servicer and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Control Eligible Certificate. In addition, upon the request of the Master Servicer, the Special Servicer or the Trustee, as applicable, the Certificate Administrator shall provide the identity of the then-current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement, and otherwise at the expense of the requesting party) of the Controlling Class to such requesting party. In the event of a change in the Controlling Class, the Certificate Administrator shall promptly contact R▇▇▇▇-▇▇▇▇▇ Investors LLC, or, if applicable, any successor Controlling Class Representative or Controlling Class Certificateholder(s), and determine whether such entity is the Holder (or Beneficial Owner) of at least a majority of the Controlling Class (in effect after such change in Controlling Class) by Certificate Principal Amount. If at any time that R▇▇▇▇-▇▇▇▇▇ Investors LLC, or any successor Controlling Class Representative or Controlling Class Certificateholder(s) is no longer the Holder (or Beneficial Owner) of at least a majority of the Controlling Class by Certificate Principal Amount and the Certificate Administrator has neither (i) received notice of the then-current Controlling Class Certificateholders of at least a majority of the Controlling Class by Certificate Principal Amount nor (ii) received notice of a replacement Controlling Class Representative pursuant to this Agreement, then a Control Termination Event and a Consultation Termination Event shall be deemed to have occurred and shall be deemed to continue until such time as the Certificate Administrator receives either such notice. Upon receipt of notice of a change in Controlling Class Representative, the Certificate Administrator shall promptly forward notice thereof to each other party to this Agreement.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2012-Gcj7), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2012-Gcj7)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for For so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) if a Special Servicing Loan Event occurs, advise the Special Servicer with respect to all Specially Serviced Loans, and (2) if a Special Servicing Loan Event has not occurred, advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b6.5(b) and the second and third paragraphs of this Section 6.09(a6.5(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, provided further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan)Certificateholders, the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating AdvisorRepresentative, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage the Trust Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may reasonably deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage the Loan Documents, applicable law, any related the Co-Lender Agreement (including Section 5(d) of the Co-Lender Agreement regarding certain consultation with the Companion Loan Holders), applicable law or any intercreditor agreement, this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Accepted Servicing StandardPractices, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan HoldersCertificateholders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage the Loan Documents, the intercreditor agreement, applicable law, the provisions of the Code resulting in an Adverse REMIC Provisions Event or this Agreement, including without limitation, the Accepted Servicing StandardPractices, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 10.17 of this Agreement, the Rule 17g-5 Information Provider Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Accepted Servicing Standard Practices or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will shall have no liability to the Trust Fund Fund, the Certificateholders or the Certificateholders Companion Loan Holders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Class E Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Class E Certificate (or the beneficial ownership of any Control Eligible Class E Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Class E Certificate (or the beneficial ownership interest in a Control Eligible Class E Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Servicer and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Class E Certificate. In addition, upon the request of the Servicer, the Special Servicer or the Trustee, as applicable, the Certificate Administrator shall provide (on a reasonably prompt basis) the identity of the then current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement, or otherwise at the expense of the requesting party and each of the Servicer, the Special Servicer and the Trustee shall be entitled to rely on such information so provided by the Certificate Administrator. The initial Controlling Class Representative, and any subsequent Controlling Class Representative, is hereby deemed to have agreed and acknowledged by virtue of its purchase of a Class E Certificate (or beneficial ownership interest in such Certificate) that its identity shall be reported monthly by the Certificate Administrator in the Distribution Date Statement. The Certificate Administrator, the Servicer and the Special Servicer will not be charged with knowledge of any Control Termination Event or Consultation Termination Event, in each case, resulting from an affiliation of the Controlling Class Representative or a majority of the Controlling Class Certificateholders (by Certificate Balance) with a Borrower Related Party, unless and until it shall have received notice of such occurrence from the Controlling Class Representative or a majority of the Controlling Class Certificateholders (by Certificate Balance) substantially in the form of Exhibit P upon which each party may conclusively rely. If at any time that the person designated by BlackRock Financial Management, Inc. or any successor Controlling Class Representative or Controlling Class Certificateholder(s) is no longer the Holder (or Beneficial Owner) of at least a majority of the Controlling Class by Certificate Balance and the Certificate Registrar has neither (i) received notice of the then current Controlling Class Certificateholders of at least a majority of the Controlling Class by Certificate Balance nor (ii) received notice of a replacement Controlling Class Representative pursuant to this Agreement, then a Control Termination Event and a Consultation Termination Event shall be deemed to have occurred and shall be deemed to continue until such time as the Certificate Administrator receives either such notice. Upon receipt of notice of a change in Controlling Class Representative, the Certificate Administrator shall promptly forward notice thereof to each other party to this Agreement.
(d) [Reserved].
(e) Until it receives notice to the contrary, each of the Servicer, the Special Servicer the Depositor and the Trustee and the Certificate Administrator shall be entitled to rely on the most recent notification with respect to the identity of the Certificateholders of the Controlling Class and the Controlling Class Representative.
(f) Notwithstanding anything to the contrary contained herein, the holder of more than 50% of the Certificates of the Controlling Class (by Certificate Balance) may, at any time, waive its right to act as or appoint a Controlling Class Representative and to exercise any of the rights of the Controlling Class Representative or cause the exercise of any of the rights of the Controlling Class Representative set forth in this Agreement, by irrevocable written notice delivered to the Depositor, Certificate Administrator, Trustee, Servicer and Special Servicer. Any such waiver will remain effective with respect to such holder and the Controlling Class until such time as that Certificateholder has (i) sold a majority of the Certificates of the Controlling Class (by Certificate Balance) to an unaffiliated third party and (ii) certified to the Depositor, Certificate Administrator, Trustee, Servicer and Special Servicer that (a) the transferor retains no direct or indirect voting rights with respect to the Certificates of the Controlling Class that it does not own, (b) there is no voting agreement between the transferee and the transferor and (c) the transferor retains no direct or indirect economic interest in the Controlling Class. Following any such transfer, the successor holder of more than 50% of the Certificates of the Controlling Class (by Certificate Balance) will again have the rights of the Controlling Class Representative as described herein without regard to any prior waiver by the predecessor Certificateholder. Such successor Certificateholder will also have the right to irrevocably waive its right to act as or appoint a Controlling Class Representative or to exercise any of the rights of the Controlling Class Representative or cause the exercise of any of the rights of the Controlling Class Representative. No such successor Certificateholder described above in this paragraph will have any consent rights with respect to the Whole Loan if a Special Servicing Loan Event exists at the time of its acquisition of a majority of the Certificates of the Controlling Class, until such Special Servicing Loan Event no longer exists. Whenever such an “opt-out” by a Controlling Class Certificateholder is in effect, a Control Termination Event and a Consultation Termination Event shall be deemed to have occurred and continue and the rights of the Holder of more than 50% of the Class E Certificates (by Certificate Balance) to act as or appoint a Controlling Class Representative and the rights of the Controlling Class Representative shall not be operative.
Appears in 2 contracts
Sources: Trust and Servicing Agreement (JPMDB Commercial Mortgage Securities Trust 2017-C5), Trust and Servicing Agreement (GS Mortgage Securities Trust 2017-Gs5)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for For so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, and (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, provided further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan HoldersCertificateholders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, that the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so actedintercreditor agreement.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Master Servicer and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Control Eligible Certificate. In addition, upon the request of the Master Servicer, the Special Servicer or the Trustee, as applicable, the Certificate Administrator shall provide (on a reasonably prompt basis) the identity of the then-current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement, and otherwise at the expense of the requesting party) of the Controlling Class to such requesting party. In the event of a change in the Controlling Class, the Certificate Administrator shall promptly contact RREF II CMBS AIV, LP or one of its Affiliates, or, if applicable, any successor Controlling Class Representative or Controlling Class Certificateholder(s), and determine whether such entity is the Holder (or Beneficial Owner) of at least a majority of the Controlling Class (in effect after such change in Controlling Class) by Certificate Principal Amount. If at any time that RREF II CMBS AIV, LP or one of its Affiliates, or any successor Controlling Class Representative or Controlling Class Certificateholder(s) is no longer the Holder (or Beneficial Owner) of at least a majority of the Controlling Class by Certificate Principal Amount and the Certificate Administrator has neither (i) received notice of the then-current Controlling Class Certificateholders of at least a majority of the Controlling Class by Certificate Principal Amount nor (ii) received notice of a replacement Controlling Class Representative pursuant to this Agreement, then a Control Termination Event and a Consultation Termination Event shall be deemed to have occurred and shall be deemed to continue until such time as the Certificate Administrator receives either such notice. Upon receipt of notice of a change in Controlling Class Representative, the Certificate Administrator shall promptly forward notice thereof to each other party to this Agreement.
(d) Once a Controlling Class Representative has been selected pursuant to clause (c) above, each of the Master Servicer, the Special Servicer, the Operating Advisor, the Depositor, the Certificate Administrator, the Trustee and each other Certificateholder (or Beneficial Owner, if applicable) shall be entitled to rely on such selection unless a majority of the Certificateholders of the Controlling Class, by Certificate Principal Amount, or such Controlling Class Representative shall have notified the Certificate Administrator, the Master Servicer and each other Certificateholder of the Controlling Class, in writing, of the resignation of such Controlling Class Representative or the selection of a new Controlling Class Representative. Upon receipt of written notice of, or other knowledge of, the resignation of a Controlling Class Representative, the Certificate Administrator shall request the Certificateholders of the Controlling Class to select a new Controlling Class Representative.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2013-Gcj12), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2013-Gcj12)
The Controlling Class Representative. (a) Other than with respect Subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the following actions of the Special Servicer with respect to non-Specially Serviced the Trust Mortgage Loans and any REO Properties (other than the Glendale Galleria Trust Mortgage Loan or any related Loan Combination REO Property, as to all matters for which the Master Servicer must obtain the consent or deemed consent provisions of the Special Servicer for a Major DecisionSection 6.12 shall apply), and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, contrary except as necessary or advisable to avoid an Adverse REMIC Event and except as set forth in, and in any event subject to to, Section 6.09(b) and the second and third paragraphs of this Section 6.09(a6.11(b), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take (or permit the Master Servicer to take) any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) Trust Mortgage Loans and any REO Properties (from other than the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 Glendale Galleria Trust Mortgage Loan or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 daysany related Loan Combination REO Property, as applicable, to which the Special Servicer provisions of Section 6.12 shall be deemed to have consented to such Major Decisionapply) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) 10 Business Days of being notified in writing thereof, which notification with respect to the action described in clauses (or in the case of a determination of an Acceptable Insurance Default, twenty vi) and (20viii) days) after receipt of the written recommendation and analysis from below shall be copied by the Special Servicer; Servicer to the Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten (10) 10 Business Day period period, then the Controlling Class Representative's approval will be deemed to have been given):
(i) any foreclosure upon or twenty comparable conversion (20which may include acquisitions of an REO Property) day periodof the ownership of properties securing such of the Trust Specially Serviced Mortgage Loans as come or have come into and continue in default;
(ii) any modification or consent to a modification of a material term of a Trust Mortgage Loan (excluding the waiver of any due-on-sale or due-on-encumbrance clause, as set forth in clause (vii) below), including the timing of payments or a modification consisting of the extension of the maturity date of a Trust Mortgage Loan;
(iii) any proposed sale of any Trust Defaulted Mortgage Loan or any REO Property (other than in connection with the termination of the Trust Fund or, in the case of a Trust Defaulted Mortgage Loan, pursuant to Section 3.18) for less than the Purchase Price of the subject Trust Defaulted Mortgage Loan or related Trust REO Loan, as applicable;
(iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property;
(v) any release of material real property collateral for any Trust Mortgage Loan, then other than (A) where the release is not conditioned upon obtaining the consent of the lender or does not require the lender's verification that certain specified conditions have been satisfied, (B) upon satisfaction of that Trust Mortgage Loan, (C) in connection with a pending or threatened condemnation action or (D) in connection with a full or partial defeasance of that Trust Mortgage Loan;
(vi) any acceptance of substitute or additional real property collateral for any Trust Mortgage Loan (except where the acceptance of the substitute or additional collateral is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative will be deemed to have approved such action; provided, further, that, required);
(vii) any waiver of a due-on-sale or due-on-encumbrance clause in the event that the Special Servicer any Trust Mortgage Loan;
(viii) any releases of earn-out reserves or Master Servicer, as applicable, determines that immediate action, related letters of credit with respect to a Major Decision, or any Mortgaged Property securing a Trust Mortgage Loan (other matter requiring than where the release is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative prior will be required;
(ix) any termination or replacement, or consent to the occurrence and continuance termination or replacement, of a Control Termination Event in this Agreementproperty manager with respect to any Mortgaged Property or any termination or change, is necessary or consent to protect the interests termination or change, of the Certificateholders franchise for any Mortgaged Property operated as a hospitality property (other than where the action is not conditioned upon obtaining the consent of the lender, in which case only prior notice to the Controlling Class Representative will be required);
(x) any determination that an insurance-related default in respect of a Trust Mortgage Loan is an Acceptable Insurance Default or that earthquake or terrorism insurance is not available at commercially reasonable rates; and
(xi) any waiver of insurance required under the related Mortgage Loan documents for a Trust Mortgage Loan (except as contemplated in clause (x) above); provided that, with respect to any Serviced Whole Trust Mortgage Loan (if applicable), the related other than a Trust Specially Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Mortgage Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of 10 Business Days within which the Controlling Class Representative for must object to any Major Decision following such action shall not exceed by more than five Business Days the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, 10 Business Day period the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only has to object to the extent Master Servicer taking such consultation withaction as set forth in Sections 3.02, or consent of, the Controlling Class Representative would have been required prior to the occurrence 3.08 and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer3.20. In addition, other than with respect subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, any such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. .
(b) Notwithstanding anything herein to the contrary, no such directionadvice, and no direction or objection given or made, or consent withheld, by the Controlling Class Representative, contemplated by the preceding paragraph Section 6.11(a) or any other section of this paragraphAgreement, may (i) require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, the terms of any related Co-Lender Agreement or Trust Mortgage Loan, any intercreditor agreement, provision of this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the Master Servicer’s and 's or the Special Servicer’s 's obligation to act in accordance with the Servicing StandardStandard or the Mortgage Loan documents for any Trust Mortgage Loan, (ii) result in an Adverse REMIC Event with respect to REMIC I or REMIC II or otherwise violate the REMIC Provisions or result in an Adverse Grantor Trust Event or have adverse tax consequences for the Trust Fund, (iii) expose the Depositor, the Master Servicer, the Special Servicer, the Certificate AdministratorTrust Fund, the Trust Trustee, the Fiscal Agent or the Trustee any of their respective Affiliates, directors, officers, employees or agents, to liabilityany claim, suit or liability to which they would not otherwise be subject absent such advice, direction or objection or consent withheld, (iv) materially expand the scope of the Master Servicer’s 's or the Special Servicer’s 's responsibilities hereunder or (v) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in violates the reasonable judgment of the Servicing Standard. The Master Servicer or and the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent any action, direction or advise and notify in writing objection on the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval part of the Controlling Class Representative that does would have any of the effects described in clauses (i) through (v) of the prior sentence. The Special Servicer shall not violate be obligated to seek approval from the Controlling Class Representative under Section 6.11(a) for any law actions to be taken by the Special Servicer with respect to any particular Trust Specially Serviced Mortgage Loan if (i) the Special Servicer has, as set forth in the first paragraph of Section 6.11(a), notified the Controlling Class Representative in writing of various actions that the Special Servicer proposes to take with respect to the work-out or liquidation of that Trust Specially Serviced Mortgage Loan and (ii) for 60 days following the first such notice, the Controlling Class Representative has objected to all of the proposed actions and has failed to suggest any alternative actions that the Special Servicer considers to be consistent with the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. Standard.
(c) The Controlling Class Representative will have no duty or liability to the Trust Fund or Certificateholders (other than the Certificateholders Controlling Class) for any action taken, or for refraining from the taking of any action, action pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees confirms its understanding that any such Non-Serviced Whole Loan the Controlling Holder, with respect to the related Non-Serviced Whole Loan, Class Representative may take actions that favor the interests of one or more classes Classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement Certificates over other Classes of the Certificates, and that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may act solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, that such Non-Serviced Whole Loan the Controlling HolderClass Representative does not have any duties to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class Representative shall not be liable to any Certificateholder, have no liability by reason of its having acted solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so actedClass, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-Cki1), Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-Cki1)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so So long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) if a Special Servicing Loan Event occurs, advise the Special Servicer with respect to all Specially Serviced Loans, and (2) if a Special Servicing Loan Event has not occurred, advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b6.5(b) and the second and third paragraphs of this Section 6.09(a6.5(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer (the “Major Decision Reporting Package”), which the Special Servicer will be required to deliver to the Controlling Class Representative within five Business Days of the Special Servicer’s receipt of notice of the proposed action; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, provided further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a so long as no Control Termination Event is continuing in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan)Certificateholders, the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no unless a Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage the Whole Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may reasonably deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage the Loan Documents, applicable law, any related the Co-Lender Agreement (including the provisions regarding certain consultation rights with the Companion Loan Holders), applicable law or any intercreditor agreement, this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Accepted Servicing Standard, Practices or expose the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests interest of the Certificateholders and/or Certificateholders. With respect to any action requiring the Serviced Companion Loan Holdersconsent of the Controlling Class Representative hereunder, such consent will be deemed given if the Controlling Class Representative does not object within ten (10) Business Days. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage the Loan Documents, the intercreditor agreementprovisions of the Code resulting in an Adverse REMIC Event, applicable law, the REMIC Provisions law or this Agreement, including without limitation, the Accepted Servicing StandardPractices, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 10.17 of this Agreement, the Rule 17g-5 Information Provider Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Accepted Servicing Standard Practices or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative. In the event that no Controlling Class Representative has been appointed or identified to the Servicer or the Special Servicer, as applicable, and the Servicer or Special Servicer, as applicable, has attempted to obtain such information from the Certificate Administrator, then, until such time as the new Controlling Class Representative is identified, the Servicer or the Special Servicer, as applicable, shall have no duty to consult with, provide notice to, or seek the approval or consent of any such Controlling Class Representative, as the case may be. After the occurrence and during the continuance of a Control Termination Event but, with respect to the Controlling Class Representative only, prior to the occurrence of a Consultation Termination Event, the Special Servicer shall consult with the Controlling Class Representative in connection with any Major Decision (and any other actions which otherwise require consultation with the Controlling Class Representative prior to a Consultation Termination Event hereunder) and consider alternative actions recommended by Controlling Class Representative in respect thereof. Such consultation will not be binding on the Special Servicer. In the event the Special Servicer receives no response from the Controlling Class Representative within 10 days following its written request for input on any required consultation, the Special Servicer shall not be obligated to consult with the Controlling Class Representative on the specific matter; provided, however, that the failure of the Controlling Class Representative to respond shall not relieve the Special Servicer from consulting with the Controlling Class Representative on any future matters with respect to the Whole Loan. The Special Servicer shall provide each Major Decision Reporting Package to the Operating Advisor simultaneously upon providing such Major Decision Reporting Package to the Controlling Class Representative. With respect to any particular Major Decision and related Major Decision Reporting Package and any Asset Status Report, the Special Servicer shall make available to the Operating Advisor Servicing Officers with relevant knowledge regarding the Whole Loan and such Major Decision and/or Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Major Decision and/or Asset Status Report and potential conflicts of interest and compensation with respect to such Major Decision and/or Asset Status Report. In addition, after the occurrence and during the continuance of an Operating Advisor Consultation Event, the Special Servicer shall consult with the Operating Advisor (ivtelephonically or electronically) in the case connection with any proposed Major Decision (and such other matters that are subject to consultation rights of the AB Operating Advisor hereunder) and consider alternative actions recommended by the Operating Advisor, in respect thereof, provided that such consultation is on a non-binding basis. In the event that the Special Servicer receives no response from the Operating Advisor within ten (10) days following the later of (i) its written request for input on any required consultation and (ii) delivery of all such additional information reasonably requested by the Operating Advisor related to the subject matter of such consultation, the Special Servicer shall not be obligated to consult with the Operating Advisor on the specific matter; provided, however, that the failure of the Operating Advisor to respond on any specific matters shall not relieve the Special Servicer from its obligation to consult with the Operating Advisor on any future matter with respect to the Whole Loan. In connection with the Controlling Class Representative or Operating Advisor’s right to consent or consult with respect to a Major Decision, as applicable, if the Special Servicer determines that action is necessary to protect the Property or the interests of the Certificateholders from potential harm if such action is not taken, or if a failure to take any such action at such time would be inconsistent with Accepted Servicing Practices, the Special Servicer may take actions with respect to the Property before the expiration of the applicable period for so long the Operating Advisor or Controlling Class Representative to respond as described in this section, if the related Subordinate Companion Loan Holder is Special Servicer reasonably determines in accordance with Accepted Servicing Practices that failure to take such actions before the related Whole Loan Directing Holderexpiration of such period would materially adversely affect the interest of the Certificateholders, and the Special Servicer has made a reasonable effort to contact the Operating Advisor or the Controlling Class Representative, as applicable. After the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative will not shall have no consultation or consent rights hereunder and shall have no right to receive any notices, reports or information (other than notices, reports or information required to be entitled delivered to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan all Certificateholders) or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loanas Controlling Class Representative. However, the Controlling Class Representative will not be entitled shall maintain the right to exercise any of its Voting Rights for the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to same purposes as any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing HolderCertificateholder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Class D, Class E or Class HRR Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Class D, Class E or Class HRR Certificate (or the beneficial ownership of any Control Eligible Class D, Class E or Class HRR Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Class D, Class E or Class HRR Certificate (or the beneficial ownership interest in a Control Eligible Class D, Class E or Class HRR Certificate) to notify in writing the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. The initial Controlling Class Representative and any subsequent Controlling Class Representative is hereby deemed to have agreed and acknowledged by virtue of its purchase of a Control Eligible Certificate (or beneficial ownership interest in such Certificate) that its identity will be reported monthly by the Certificate Administrator in the Distribution Date Statement. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Servicer, the Operating Advisor and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Class D, Class E or Class HRR Certificate. In addition, upon the request of the Servicer, the Special Servicer, the Operating Advisor or the Trustee, as applicable, the Certificate Administrator shall provide (on a reasonably prompt basis) the identity of the then current Controlling Class, a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or co
Appears in 2 contracts
Sources: Trust and Servicing Agreement (CSAIL 2017-Cx9 Commercial Mortgage Trust), Trust and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2017-C39)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for For so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) advise the Special Servicer with respect to all each Specially Serviced LoansLoan, (2) advise the Special Servicer with respect to non-Specially Serviced Loans each Performing Loan as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, Decision and (3) with respect to any Non-each Outside Serviced Mortgage Trust Loan, exercise the consent or approval rights set forth in Section 3.01(i) of this Agreement, exercise consultation rights in respect of “Major Decisions” under, and consent rights (if any) within the meaning of, the applicable Other Pooling and Servicing Agreement and attend an annual meetings meeting with an the related Other Master Servicer and an the related Other Special Servicer, in each case, to the extent the holder of a Non-such Outside Serviced Mortgage Trust Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (Decision; provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, provided further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable)Combination, the related Serviced Companion Loan Holder(s) Holder (as a collective whole as if such Certificateholders and, if applicablewith respect to any Serviced Loan Combination, the related Serviced Companion Loan Holder(s) Holder constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole LoanLoan Combination, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or Agreement, any intercreditor agreement, applicable law, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the any related Co-Lender Agreement or mezzanine intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, that the rights of the Controlling Class Representative are subject to the any related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so actedmezzanine intercreditor agreement.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Serviced Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole LoanLoan Combination, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Master Servicer, the Operating Advisor and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Control Eligible Certificate. In addition, upon the request of the Master Servicer, the Special Servicer, the Operating Advisor or the Trustee, as applicable, the Certificate Administrator shall provide the identity of the then-current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement or in connection with a request made by the Operating Advisor in connection with its obligation under Section 3.29(d)(ii) of this Agreement to deliver a copy of the Operating Advisor Annual Report to the Controlling Class Representative, and otherwise at the expense of the requesting party) of the Controlling Class to such requesting party, and each of the Master Servicer, Special Servicer, Operating Advisor and the Trustee shall be entitled to rely on the information so provided by the Certificate Administrator. In the event of a change in the Controlling Class, the Certificate Administrator shall promptly contact the current Holder of the Controlling Class (or its designee) or, if applicable, any successor Controlling Class Representative or Controlling Class Certificateholder(s), and determine whether such entity is the Holder (or Beneficial Owner) of at least a majority of the Controlling Class (in effect after such change in Controlling Class) by Certificate Principal Amount. If at any time the current Holder of the Controlling Class (or its designee) or one of its Affiliates, or any successor Controlling Class Representative or Controlling Class Certificateholder(s) is no longer the Holder (or Beneficial Owner) of at least a majority of the Controlling Class by Certificate Principal Amount and the Certificate Administrator has neither (i) received notice of the then-current Controlling Class Certificateholders of at least a majority of the Controlling Class by Certificate Principal Amount nor (ii) received notice of a replacement Controlling Class Representative pursuant to this Agreement, then a Control Termination Event and a Consultation Termination Event shall be deemed to have occurred and shall be deemed to continue until such time as the Certificate Administrator receives either such notice. Upon receipt of notice of a change in Controlling Class Representative, the Certificate Administrator shall promptly forward notice thereof to each other party to this Agreement.
(e) Once a Controlling Class Representative has been selected, each of the Master Servicer, the Special Servicer, the Operating Advisor, the Depositor, the Certificate Administrator, the Trustee and each other Certificateholder (or Beneficial Owner, if applicable) shall be entitled to rely on such selection unless a majority of the Certificateholders of the Controlling Class, by Certificate Principal Amount, or such Controlling Class Representative shall have notified the Certificate Administrator, the Master Servicer and each other Certificateholder of the Controlling Class, in writing, of the resignation of such Controlling Class Representative or the selection of a new Controlling Class Representative. Upon receipt of written notice of, or other knowledge of, the resignation of a Controlling Class Representative, the Certificate Administrator shall request the Certificateholders of the Controlling Class to select a new Controlling Class Representative.
(f) If at any time a book-entry certificate belongs to the Controlling Class, the Certificate Administrator shall notify the related Beneficial
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2014-Gc22), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2014-Gc19)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so So long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) if a Special Servicing Loan Event occurs, advise the Special Servicer with respect to all Specially Serviced Loans, and (2) if a Special Servicing Loan Event has not occurred, advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b6.5(b) and the second and third paragraphs of this Section 6.09(a6.5(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 ten (10) Business Days (or 60 sixty (60) days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 ten (10) Business Days or 60 sixty (60) days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis and other information reasonably requested by the Controlling Class Representative from the Special Servicer unless such actions are part of an asset status report approved by the Controlling Class Representative (the “Major Decision Reporting Package”), which the Special Servicer will be required to deliver to the Controlling Class Representative within five (5) Business Days of the Special Servicer’s receipt of notice of the proposed action; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, provided further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a so long as no Control Termination Event is continuing in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan)Certificateholders, the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no unless a Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a the Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may reasonably deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage the Loan Documents, applicable law, any related the Co-Lender Agreement (including the provisions regarding certain consultation rights with the Companion Loan Holders), applicable law or any intercreditor agreement, this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Accepted Servicing Standard, Practices or expose the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests interest of the Certificateholders and/or Certificateholders. With respect to any action requiring the Serviced Companion Loan Holdersconsent of the Controlling Class Representative hereunder, such consent will be deemed given if the Controlling Class Representative does not object within ten (10) Business Days. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage the Loan Documents, the intercreditor agreementprovisions of the Code resulting in an Adverse REMIC Event, applicable law, the REMIC Provisions law or this Agreement, including without limitation, the Accepted Servicing StandardPractices, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 10.17 of this Agreement, the Rule 17g-5 Information Provider each Rating Agency of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Accepted Servicing Standard Practices or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative. In the event that no Controlling Class Representative has been appointed or identified to the Servicer or the Special Servicer, as applicable, and the Servicer or Special Servicer, as applicable, has attempted to obtain such information from the Certificate Administrator, then, until such time as the new Controlling Class Representative is identified, the Servicer or the Special Servicer, as applicable, shall have no duty to consult with, provide notice to, or seek the approval or consent of any such Controlling Class Representative, as the case may be. After the occurrence and during the continuance of a Control Termination Event but, with respect to the Controlling Class Representative only, prior to the occurrence of a Consultation Termination Event, the Special Servicer shall consult with the Controlling Class Representative in connection with any Major Decision (and any other actions which otherwise require consultation with the Controlling Class Representative prior to a Consultation Termination Event hereunder) and consider alternative actions recommended by Controlling Class Representative in respect thereof. Such consultation will not be binding on the Special Servicer. In the event the Special Servicer receives no response from the Controlling Class Representative within 10 days following its written request for input on any required consultation, the Special Servicer shall not be obligated to consult with the Controlling Class Representative on the specific matter; provided, however, that the failure of the Controlling Class Representative to respond shall not relieve the Special Servicer from consulting with the Controlling Class Representative on any future matters with respect to the Mortgage Loan. The Special Servicer shall provide each Major Decision Reporting Package to the Operating Advisor simultaneously upon providing such Major Decision Reporting Package to the Controlling Class Representative. With respect to any particular Major Decision and related Major Decision Reporting Package and any Asset Status Report, the Special Servicer shall make available to the Operating Advisor Servicing Officers with relevant knowledge regarding the Mortgage Loan and such Major Decision and/or Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Major Decision and/or Asset Status Report and potential conflicts of interest and compensation with respect to such Major Decision and/or Asset Status Report. In addition, after the occurrence and during the continuance of an Operating Advisor Consultation Event, the Special Servicer shall consult with the Operating Advisor (ivtelephonically or electronically) in the case connection with any proposed Major Decision (and such other matters that are subject to consultation rights of the AB Whole Operating Advisor hereunder) and consider alternative actions recommended by the Operating Advisor, in respect thereof, provided that such consultation is on a non-binding basis. In the event that the Special Servicer receives no response from the Operating Advisor within ten (10) Business Days following the later of (i) its written request for input (which initial request will be required to include a Major Decision Reporting Package) on any required consultation and (ii) delivery of all such additional information reasonably requested by the Operating Advisor related to the subject matter of such consultation, the Special Servicer shall not be obligated to consult with the Operating Advisor on the specific matter; provided, however, that the failure of the Operating Advisor to respond on any specific matters shall not relieve the Special Servicer from its obligation to consult with the Operating Advisor on any future matter with respect to the Mortgage Loan. In connection with the Controlling Class Representative or Operating Advisor’s right to consent or consult with respect to a Major Decision, as applicable, if the Special Servicer determines that action is necessary to protect the Property or the interests of the Certificateholders from potential harm if such action is not taken, or if a failure to take any such action at such time would be inconsistent with Accepted Servicing Practices, the Special Servicer may take actions with respect to the Property before the expiration of the applicable period for so long the Operating Advisor or Controlling Class Representative to respond as described in this section, if the related Subordinate Companion Loan Holder is Special Servicer reasonably determines in accordance with Accepted Servicing Practices that failure to take such actions before the related Whole Loan Directing Holderexpiration of such period would materially adversely affect the interest of the Certificateholders, and the Special Servicer has made a reasonable effort to contact the Operating Advisor or the Controlling Class Representative, as applicable. After the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative will not shall have no consultation or consent rights hereunder and shall have no right to receive any notices, reports or information (other than notices, reports or information required to be entitled delivered to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan all Certificateholders) or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loanas Controlling Class Representative. However, the Controlling Class Representative will not be entitled shall maintain the right to exercise any of its Voting Rights for the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to same purposes as any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing HolderCertificateholder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 1 contract
Sources: Trust and Servicing Agreement (CSAIL 2019-C15 Commercial Mortgage Trust)
The Controlling Class Representative. (a) Other than with respect Subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event Section 6.12 of this Agreement and the WPC Department Store Portfolio Whole Loanterms of the WellPoint Co-Lender Agreement, prior to in the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingcase of the WellPoint Loan Combination or any related REO Property, the Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent following actions of the Special Servicer for a Major DecisionServicer, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to Section 6.09(b) and to, the second and third paragraphs paragraph of this Section 6.09(a6.11(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days of being notified thereof and having received the information reasonably necessary to make an informed decision with respect thereto, which notification with respect to the action described in clause (or in the case of a determination of an Acceptable Insurance Default, twenty (20vi) days) after receipt of the written recommendation and analysis from below shall be copied by the Special Servicer; Servicer to the applicable Master Servicer (provided that that, if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative Representative's approval will be deemed to have approved been given): 238
(i) any foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such actionof the Specially Serviced Trust Mortgage Loans as come into and continue in default;
(ii) any modification of a Money Term (other than late payment charge and Default Interest provisions) of a Trust Mortgage Loan, but excluding a modification consisting of the extension of the maturity date of a Trust Mortgage Loan for one (1) year or less;
(iii) any proposed sale of an REO Property (other than in connection with the termination of the Trust Fund) for less than the related Purchase Price;
(iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property;
(v) any release of collateral, or acceptance of substitute or additional collateral, for a Trust Mortgage Loan unless required by the related Trust Mortgage Loan documents and/or applicable law;
(vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance" clause; provided, further, that, and
(vii) any acceptance of an assumption agreement releasing a Mortgagor from liability under a Trust Mortgage Loan (other than in connection with a defeasance permitted under the event terms of the applicable Trust Mortgage Loan Documents); provided that the Special Servicer or Master Servicer, as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent foregoing rights of the Controlling Class Representative prior shall not relate to (x) the occurrence WellPoint Trust Mortgage Loan or any related REO Property, regarding which the rights and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests powers of the Certificateholders andspecified Persons set forth under Section 6.12 are instead applicable or (y) the Outside Serviced Trust Mortgage Loans or any related REO Property, with respect to any Serviced Whole Loan (if applicable), regarding which the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a nonCo-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) Lender Agreement and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special ServicerOutside Servicing Agreement governs. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions (other than with respect to a Mortgage the WellPoint Loan Combination or any related REO Property or the Outside Serviced Whole Loan, as applicable, Loan Combination or any related REO Property) as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding in this Agreement; provided that, notwithstanding anything herein to the contrary, contrary no such direction, and no objection contemplated by the preceding paragraph or this paragraphSection 3.19(e), may (and the applicable Master Servicer or the Special Servicer, as applicable, shall disregard any such direction or objection that would) require or cause the such Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender provision of this Agreement or any intercreditor agreement, this Agreement Trust Mortgage Loan or the REMIC Provisions, including including, without limitation each of the limitation, such Master Servicer’s and 's or the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the applicable Master Servicer, the Special Servicer, the Certificate AdministratorTrust Fund, the Trust Certificate Administrator or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the applicable Master Servicer’s 's or the Special Servicer’s 's responsibilities hereunder or cause the applicable Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the applicable Master Servicer or the Special Servicer, as the case may be, is not in the best interests of the Certificateholders. For the avoidance of doubt, a Master Servicer and/or the Special Servicer shall disregard any direction or objection of any party (including, without limitation, of the Controlling Class Representative) if such direction and/or objection causes such Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or any Trust Mortgage Loan or the REMIC Provisions or expose such Master Servicer, the Special Servicer, the Trust Fund, the Certificate Administrator or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of such Master Servicer's or the Special Servicer's responsibility hereunder or cause such Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of such Master Servicer or the Special Servicer is not in the best interests interest of the Certificateholders and/or or is inconsistent with the Serviced Companion Loan HoldersServicing Standard. In Any right to take any action, grant or withhold any consent or otherwise exercise any right, election or remedy afforded the event Controlling Class Representative under this Agreement may, unless otherwise expressly provided herein to the Special Servicer contrary, be affirmatively waived by the Controlling Class Representative by written notice given to the Trustee or the applicable Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms . Upon delivery of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing notice of waiver given by the Controlling Class Representative, any time period (exclusive or otherwise) afforded the Controlling Class Representative to exercise any such right, make any such election or grant or withhold any such consent shall thereupon be deemed to have expired with the same force and effect as if the specific time period set forth in this Agreement applicable thereto had itself expired.
(b) The Controlling Class Representative is hereby authorized to exercise the rights and powers, if any, of the holder of the Mortgage Note for the Ala Moana Portfolio Senior Trust Mortgage Loan, under Sections 4.6 and 4.9 of the related Co-Lender Agreement (and any corresponding provisions of the Outside Servicing Agreement), including for purposes of exercising, either individually or together with the holders of the promissory notes for the Ala Moana Portfolio Pari Passu Non-Trust Mortgage Loans, as the case may be, consent rights, consultation rights, rights to direct servicing and rights to replace the Outside Special Servicer. Promptly following the initial such appointment of a Controlling Class Representative and any subsequent such appointment of a successor Controlling Class Representative with respect to the Ala Moana Portfolio Senior Trust Mortgage Loan, the Trustee shall inform the Outside Servicers and the Ala Moana Portfolio Non-Trust Mortgage Loan Noteholders (and from time to time shall ensure that such parties remain similarly informed) that the Controlling Class Representative is entitled, to the full extent permitted under the related Co-Lender Agreement, to exercise such rights and powers, if any, of the holder of the Mortgage Note for the Ala Moana Portfolio Senior Trust Mortgage Loan, under Sections 4.6 and 4.9 of the related Co-Lender Agreement (and any corresponding provisions of the Outside Servicing Agreement), and, for posting further, the Trustee shall take such other actions as may be required under the related Co-Lender Agreement in order to permit the Controlling Class Representative to exercise such rights and powers. The Controlling Class Representative shall be subject to the Rule 17g-5 Information Provider’s Website same limitations, constraints and restrictions in exercising such rights and powers as would be applicable to the Trustee, in its capacity as holder of the Mortgage Note for the Ala Moana Portfolio Senior Trust Mortgage Loan. In addition, subject to Section 7.01(c) and each other section hereof that specifically addresses a particular matter with respect to the Ala Moana Portfolio Senior Trust Mortgage Loan, if the Trustee is requested to take any action in its capacity as holder of the Mortgage Note for the Ala Moana Portfolio Senior Trust Mortgage Loan, pursuant to Section 11.13 of this the related Co-Lender Agreement and/or the Outside Servicing Agreement, then the Rule 17g-5 Information Provider of its determinationTrustee will notify (in writing), including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer and act in accordance with the direction instructions of, the Controlling Class Representative; provided that, if such instructions are not provided within the prescribed time period, then the Trustee, subject to Sections 8.01 and 8.02, shall take such action or inaction as it deems to be in the best interests of the 240 Certificateholders (as a collective whole) and shall have all rights and powers incident thereto; and provided, further, that the Trustee, with respect to the Ala Moana Portfolio Senior Trust Mortgage Loan or approval of the corresponding interest in any related REO Property, (i) shall not be required to take any action that relates to directing or approving any servicing related action under the Outside Servicing Agreement or the related Co-Lender Agreement, to the extent that the Controlling Class Representative has been notified thereof and has failed to provide instructions with respect to such action within the prescribed time period, and (ii) shall not take any action that does is not violate any permitted under applicable law or the Servicing Standard or any other provisions terms of this Agreement, any the related Co-Lender Agreement or the Outside Servicing Agreement or any intercreditor agreement will not result action that is, in any liability on the part good faith, reasonable discretion of the Master Servicer or Trustee, materially adverse to the Special Servicer. interests of the Certificateholders (as a collective whole).
(c) The Controlling Class Representative will not have no any liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for error errors in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) confirms its understanding that the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes Classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement Certificates over other Classes of the Certificates, and that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may act solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class of Certificates, that such Non-Serviced Whole Loan the Controlling HolderClass Representative does not have any duties to the Holders of any Class of Certificates other than the Controlling Class of Certificates, shall that the Controlling Class Representative will not be liable deemed to any Certificateholderhave been negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance, by reason of its having acted solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class of Certificates, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall Class Representative will not have no any liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2006-C5)
The Controlling Class Representative. (a) Other than with respect Subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the following actions of the Special Servicer with respect to non-Specially the Serviced Trust Mortgage Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decisionand any Administered REO Properties, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, contrary except as necessary or advisable to avoid an Adverse REMIC Event and except as set forth in, and in any event subject to to, Section 6.09(b) and the second and third paragraphs of this Section 6.09(a6.11(b), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take (or permit the applicable Master Servicer to take) any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze Serviced Trust Mortgage Loans and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision Administered REO Properties as to which the Controlling Class Representative has objected in writing within ten (10) 10 Business Days of being notified in writing thereof, which notification with respect to the action described in clauses (or in the case of a determination of an Acceptable Insurance Default, twenty vi) and (20viii) days) after receipt of the written recommendation and analysis from below shall be copied by the Special Servicer; Servicer to the applicable Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten (10) 10 Business Day period period, then the Controlling Class Representative's approval will be deemed to have been given):
(i) any foreclosure upon or twenty comparable conversion (20which may include acquisitions of an Administered REO Property) day periodof the ownership of properties securing such of the Trust Specially Serviced Mortgage Loans as come or have come into and continue in default;
(ii) any modification or consent to a modification of a material term of a Serviced Trust Mortgage Loan (excluding the waiver of any due-on-sale or due-on-encumbrance clause, as set forth in clause (vii) below), including the timing of payments or a modification consisting of the extension of the maturity date of a Serviced Trust Mortgage Loan;
(iii) any proposed sale of any Serviced Trust Defaulted Mortgage Loan or any Administered REO Property (other than in connection with the termination of the Trust Fund or, in the case of a Serviced Trust Defaulted Mortgage Loan, pursuant to Section 3.18) for less than the Purchase Price of the subject Trust Defaulted Mortgage Loan or related Trust REO Loan, as applicable;
(iv) any determination to bring an Administered REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an Administered REO Property;
(v) any release of material real property collateral for any Serviced Trust Mortgage Loan, then other than (A) where the release is not conditioned upon obtaining the consent of the lender or certain specified conditions being satisfied, (B) upon satisfaction of that Serviced Trust Mortgage Loan, (C) in connection with a pending or threatened condemnation action or (D) in connection with a full or partial defeasance of that Serviced Trust Mortgage Loan;
(vi) any acceptance of substitute or additional real property collateral for any Serviced Trust Mortgage Loan (except where the acceptance of the substitute or additional collateral is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative will be deemed to have approved such action; provided, further, that, required);
(vii) any waiver of a due-on-sale or due-on-encumbrance clause in the event that the Special Servicer any Serviced Trust Mortgage Loan;
(viii) any releases of earn-out reserves or Master Servicer, as applicable, determines that immediate action, related letters of credit with respect to a Major DecisionMortgaged Property securing a Serviced Trust Mortgage Loan set forth on Schedule VII hereto;
(ix) any termination or replacement, or consent to the termination or replacement, of a property manager with respect to any Serviced Mortgaged Property or any termination or change, or consent to the termination or change, of the franchise for any Serviced Mortgaged Property operated as a hospitality property (other matter requiring than where the action is not conditioned upon obtaining the consent of the lender, in which case only prior notice to the Controlling Class Representative prior to the occurrence and continuance will be required);
(x) any determination that an insurance-related default in respect of a Control Termination Event Serviced Trust Mortgage Loan is an Acceptable Insurance Default or that earthquake or terrorism insurance is not available at commercially reasonable rates; and
(xi) any waiver of insurance required under the related Mortgage Loan documents for a Serviced Trust Mortgage Loan (except as contemplated in this Agreement, is necessary to protect the interests of the Certificateholders andclause (x) above); provided that, with respect to any Serviced Whole Trust Mortgage Loan (if applicable), the related other than a Trust Specially Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Mortgage Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of 10 Business Days within which the Controlling Class Representative for must object to any Major Decision following such action shall not exceed by more than five Business Days the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, 10 Business Day period the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only has to object to the extent applicable Master Servicer taking such consultation withaction as set forth in Sections 3.02, or consent of, the Controlling Class Representative would have been required prior to the occurrence 3.08 and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer3.20. In addition, other than with respect subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, any such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. .
(b) Notwithstanding anything herein to the contrary, no such directionadvice, and no direction or objection given or made, or consent withheld, by the Controlling Class Representative, contemplated by the preceding paragraph Section 6.11(a) or any other section of this paragraphAgreement, may (i) require or cause the applicable Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, the terms of any related Co-Lender Agreement or Serviced Trust Mortgage Loan, any intercreditor agreement, provision of this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the such Master Servicer’s and 's or the Special Servicer’s 's obligation to act in accordance with the Servicing StandardStandard or the Mortgage Loan documents for any Serviced Trust Mortgage Loan, (ii) result in an Adverse REMIC Event with respect to REMIC I or REMIC II or otherwise violate the REMIC Provisions or result in an Adverse Grantor Trust Event or result in an adverse tax consequence for the Trust Fund, except that the Controlling Class Representative -267- may advise or direct that the Trust Fund earn "net income from foreclosure property" that is subject to tax with the consent of the Special Servicer, if the Special Servicer determines that the net after-tax benefit to Certificateholders is greater than another method of operating or net-leasing the subject REO Property, (iii) expose the Depositor, the applicable Master Servicer, the Special Servicer, the Certificate AdministratorTrust Fund, the Trust Trustee, any Fiscal Agent or the Trustee any of their respective Affiliates, directors, officers, employees or agents, to liabilityany claim, suit or liability to which they would not otherwise be subject absent such advice, direction or objection or consent withheld, (iv) materially expand the scope of the applicable Master Servicer’s 's or the Special Servicer’s 's responsibilities hereunder or (v) cause the applicable Master Servicer or the Special Servicer to act, or fail to act, in a manner which in violates the reasonable judgment Servicing Standard. The applicable Master Servicer and the Special Servicer shall disregard any action, direction or objection on the part of the Controlling Class Representative that would have any of the effects described in clauses (i) through (v) of the prior sentence. In addition, if the applicable Master Servicer or the Special Servicer determines that immediate action is not in necessary to protect the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer(as a collective whole), as applicable, determines that it may take such action without waiting for a refusal to consent by response from the Controlling Class Representative or any advice Representative. The Special Servicer shall not be obligated to seek approval from the Controlling Class Representative would otherwise cause under Section 6.11(a) for any actions to be taken by the Special Servicer or Master Servicer, as applicable, with respect to violate the terms of any particular Trust Specially Serviced Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, if (i) the Special Servicer or Master Servicerhas, as applicableset forth in the first paragraph of Section 6.11(a), shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of notified the Controlling Class Representative in writing of various actions that does not violate the Special Servicer proposes to take with respect to the work-out or liquidation of that Trust Specially Serviced Mortgage Loan and (ii) for 60 days following the first such notice, the Controlling Class Representative has objected to all of the proposed actions and has failed to suggest any law or alternative actions that the Special Servicer considers to be consistent with the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. Standard.
(c) The Controlling Class Representative will have no duty or liability to the Trust Fund or Certificateholders (other than the Certificateholders Controlling Class) for any action taken, or for refraining from the taking of any action, action pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees confirms its understanding that any such Non-Serviced Whole Loan the Controlling Holder, with respect to the related Non-Serviced Whole Loan, Class Representative may take actions that favor the interests of one or more classes Classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement Certificates over other Classes of the Certificates, and that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may act solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, that such Non-Serviced Whole Loan the Controlling HolderClass Representative does not have any duties to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class Representative shall not be liable to any Certificateholder, have no liability by reason of its having acted solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so actedClass, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative or any director, officer, employee, agent or principal thereof for having so acted.
(bd) Notwithstanding anything Any right to the contrary contained herein: (i) take action, grant or withhold any consent or otherwise exercise any right, election or remedy afforded the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to under this AgreementAgreement may, after the occurrence and during the continuance of a Control Termination Event but prior unless otherwise expressly provided herein to the occurrence and continuance of a Consultation Termination Eventcontrary, be affirmatively waived by the Controlling Class Representative shall remain entitled by written notice given to receive any notices, reports the Trustee or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and as applicable. Upon delivery of any other applicable party shall consult with such notice of waiver given by the Controlling Class Representative, any time period (exclusive or otherwise) afforded the Controlling Class Representative in connection with to exercise any action such right, make any such election or grant or withhold any such consent shall thereupon be deemed to be taken or refrained from taking to the extent it would have been required to obtain the consent expired. Any waiver of the Controlling Class Representative but for the occurrence of rights by a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holderset forth above, the shall not be binding any subsequent Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing HolderRepresentative.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 1 contract
Sources: Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2006-4)
The Controlling Class Representative. (a) Other than with respect Subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the following actions of the Special Servicer with respect to non-Specially the Trust Mortgage Loans and any Administered REO Properties (other than the Loan Combinations that are not Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major DecisionLoan Combinations (and any related Loan Combination REO Property), and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicerand, in each casethe case of a Serviced Loan Combination, only to the extent the holder of a Non-Serviced Mortgage related Loan is entitled Combination Intercreditor Agreement gives the right to such rights pursuant approve the following actions to the related CoNon-Lender Agreement. In additionTrust Noteholder), and notwithstanding anything herein to the contrary, contrary except as necessary or advisable to avoid an Adverse REMIC Event and except as set forth in, and in any event subject to to, Section 6.09(b) and the second and third paragraphs of this Section 6.09(a6.11(b), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take (or permit the applicable Master Servicer to take) any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance DefaultTrust Mortgage Loans and any REO Properties (other than the Loan Combinations) that are not Serviced Loan Combinations (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subjectany related Loan Combination REO Property), however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided thatand, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisionscase of a Serviced Loan Combination, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent only to the Master Servicer’s taking any of extent the related Loan Combination Intercreditor Agreement gives the right to approve the following actions constituting a Major Decision, nor will to the Special Servicer itself be permitted to take any of the actions constituting a Major Decision related Non-Trust Noteholder) as to which the Controlling Class Representative has objected in writing within ten (10) 10 Business Days of being notified in writing thereof, which notification with respect to the action described in clauses (or in the case of a determination of an Acceptable Insurance Default, twenty vi) and (20viii) days) after receipt of the written recommendation and analysis from below shall be copied by the Special Servicer; Servicer to the applicable Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten (10) 10 Business Day period period, then the Controlling Class Representative's approval will be deemed to have been given):
(i) any foreclosure upon or twenty comparable conversion (20which may include acquisitions of an REO Property) day periodof the ownership of properties securing such of the Trust Specially Serviced Mortgage Loans as come or have come into and continue in default;
(ii) any modification or consent to a modification of a material term of a Serviced Trust Mortgage Loan (excluding the waiver of any due-on-sale or due-on-encumbrance clause, as set forth in clause (vii) below), including the timing of payments or a modification consisting of the extension of the maturity date of a Serviced Trust Mortgage Loan;
(iii) any proposed sale of any Serviced Trust Defaulted Mortgage Loan or any Administered REO Property (other than in connection with the termination of the Trust Fund or, in the case of a Serviced Trust Defaulted Mortgage Loan, pursuant to Section 3.18) for less than the Purchase Price of the subject Trust Defaulted Mortgage Loan or related Trust REO Loan, as applicable;
(iv) any determination to bring an Administered REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an Administered REO Property;
(v) any release of material real property collateral for any Serviced Trust Mortgage Loan, then other than (A) where the release is not conditioned upon obtaining the consent of the lender or certain specified conditions being satisfied, (B) upon satisfaction of that Serviced Trust Mortgage Loan, (C) in connection with a pending or threatened condemnation action or (D) in connection with a full or partial defeasance of that Serviced Trust Mortgage Loan;
(vi) any acceptance of substitute or additional real property collateral for any Serviced Trust Mortgage Loan (except where the acceptance of the substitute or additional collateral is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative will be deemed to have approved such action; provided, further, that, required);
(vii) any waiver of a due-on-sale or due-on-encumbrance clause in the event that the Special Servicer any Serviced Trust Mortgage Loan;
(viii) any releases of earn-out reserves or Master Servicer, as applicable, determines that immediate action, related letters of credit with respect to a Major Decision, or any Mortgaged Property securing a Trust Mortgage Loan (other matter requiring than where the release is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative prior will be required);
(ix) any termination or replacement, or consent to the occurrence and continuance termination or replacement, of a Control Termination Event in this Agreementproperty manager with respect to any Serviced Mortgaged Property or any termination or change, is necessary or consent to protect the interests termination or change, of the Certificateholders franchise for any Serviced Mortgaged Property operated as a hospitality property (other than where the action is not conditioned upon obtaining the consent of the lender, in which case only prior notice to the Controlling Class Representative will be required);
(x) any determination that an insurance-related default in respect of a Serviced Trust Mortgage Loan is an Acceptable Insurance Default or that earthquake or terrorism insurance is not available at commercially reasonable rates; and
(xi) any waiver of insurance required under the related Mortgage Loan documents for a Serviced Trust Mortgage Loan (except as contemplated in clause (x) above); provided that, with respect to any Serviced Whole Trust Mortgage Loan (if applicable), the related other than a Trust Specially Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Mortgage Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of 10 Business Days within which the Controlling Class Representative for must object to any Major Decision following such action shall not exceed by more than five Business Days the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, 10 Business Day period the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only has to object to the extent applicable Master Servicer taking such consultation withaction as set forth in Sections 3.02, or consent of, the Controlling Class Representative would have been required prior to the occurrence 3.08 and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer3.20. In addition, other than with respect subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, any such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. .
(b) Notwithstanding anything herein to the contrary, no such directionadvice, and no direction or objection given or made, or consent withheld, by the Controlling Class Representative, contemplated by the preceding paragraph Section 6.11(a) or any other section of this paragraphAgreement, may (i) require or cause the applicable Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, the terms of any Serviced Trust Mortgage Loan or any related Co-Lender Agreement or any intercreditor agreement, any provision of this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the such Master Servicer’s and 's or the Special Servicer’s 's obligation to act in accordance with the Servicing StandardStandard or the Mortgage Loan documents for any Trust Mortgage Loan, (ii) result in an Adverse REMIC Event with respect to REMIC I or REMIC II or otherwise violate the REMIC Provisions or result in an Adverse Grantor Trust Event or have adverse tax consequences for the Trust Fund, (iii) expose the Depositor, the applicable Master Servicer, the Special Servicer, the Certificate AdministratorTrust Fund, the Trust Trustee, any Fiscal Agent or the Trustee any of their respective Affiliates, directors, officers, employees or agents, to liabilityany claim, suit or liability to which they would not otherwise be subject absent such advice, direction or objection or consent withheld, (iv) materially expand the scope of the applicable Master Servicer’s 's or the Special Servicer’s 's responsibilities hereunder or (v) cause the applicable Master Servicer or the Special Servicer to act, or fail to act, in a manner which in violates the reasonable judgment Servicing Standard. The applicable Master Servicer and the Special Servicer shall disregard any action, direction or objection on the part of the Controlling Class Representative that would have any of the effects described in clauses (i) through (v) of the prior sentence. In addition, if the applicable Master Servicer or the Special Servicer determines that immediate action is not in necessary to protect the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer(as a collective whole), as applicable, determines that it may take such action without waiting for a refusal to consent by response from the Controlling Class Representative or any advice Representative. The Special Servicer shall not be obligated to seek approval from the Controlling Class Representative would otherwise cause under Section 6.11(a) for any actions to be taken by the Special Servicer or Master Servicer, as applicable, with respect to violate the terms of any particular Trust Specially Serviced Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, if (i) the Special Servicer or Master Servicerhas, as applicableset forth in the first paragraph of Section 6.11(a), shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of notified the Controlling Class Representative in writing of various actions that does not violate the Special Servicer proposes to take with respect to the work-out or liquidation of that Trust Specially Serviced Mortgage Loan and (ii) for 60 days following the first such notice, the Controlling Class Representative has objected to all of the proposed actions and has failed to suggest any law or alternative actions that the Special Servicer considers to be consistent with the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. Standard.
(c) The Controlling Class Representative will have no duty or liability to the Trust Fund or Certificateholders (other than the Certificateholders Controlling Class) for any action taken, or for refraining from the taking of any action, action pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees confirms its understanding that any such Non-Serviced Whole Loan the Controlling Holder, with respect to the related Non-Serviced Whole Loan, Class Representative may take actions that favor the interests of one or more classes Classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement Certificates over other Classes of the Certificates, and that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may act solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, that such Non-Serviced Whole Loan the Controlling HolderClass Representative does not have any duties to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class Representative shall not be liable to any Certificateholder, have no liability by reason of its having acted solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so actedClass, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 1 contract
Sources: Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2007-8)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for For so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings meeting with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, provided further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable)Loan, the related Serviced Companion Loan Holder(s) Holder (as a collective whole as if such Certificateholders and, if applicable, the and related Serviced Companion Loan Holder(s) Holder constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, that the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so actedintercreditor agreement.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Master Servicer, the Operating Advisor and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Control Eligible Certificate. In addition, upon the request of the Master Servicer, the Special Servicer, the Operating Advisor or the Trustee, as applicable, the Certificate Administrator shall provide (on a reasonably prompt basis) the identity of the then-current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement, and otherwise at the expense of the requesting party) of the Controlling Class to such requesting party. In the event of a change in the Controlling Class, the Certificate Administrator shall promptly contact RREF II CMBS AIV, LP or one of its Affiliates, or, if applicable, any successor Controlling Class Representative or Controlling Class Certificateholder(s), and determine whether such entity is the Holder (or Beneficial Owner) of at least a majority of the Controlling Class (in effect after such change in Controlling Class) by Certificate Principal Amount. If at any time that RREF II CMBS AIV, LP or one of its Affiliates, or any successor Controlling Class Representative or Controlling Class Certificateholder(s) is no longer the Holder (or Beneficial Owner) of at least a majority of the Controlling Class by Certificate Principal Amount and the Certificate Administrator has neither (i) received notice of the then-current Controlling Class Certificateholders of at least a majority of the Controlling Class by Certificate Principal Amount nor (ii) received notice of a replacement Controlling Class Representative pursuant to this Agreement, then a Control Termination Event and a Consultation Termination Event shall be deemed to have occurred and shall be deemed to continue until such time as the Certificate Administrator receives either such notice. Upon receipt of notice of a change in Controlling Class Representative, the Certificate Administrator shall promptly forward notice thereof to each other party to this Agreement.
(e) Once a Controlling Class Representative has been selected pursuant to clause (c) above, each of the Master Servicer, the Special Servicer, the Operating Advisor, the Depositor, the Certificate Administrator, the Trustee and each other Certificateholder (or Beneficial Owner, if applicable) shall be entitled to rely on such selection unless a majority of the Certificateholders of the Controlling Class, by Certificate Principal Amount, or such Controlling Class Representative shall have notified the Certificate Administrator, the Master Servicer and each other Certificateholder of the Controlling Class, in writing, of the resignation of such Controlling Class Representative or the selection of a new Controlling Class Representative. Upon receipt of written notice of, or other knowledge of, the resignation of a Controlling Class Representative, the Certificate Administrator shall request the Certificateholders of the Controlling Class to select a new Controlling Class Representative.
(f) If at any time a book-entry certificate belongs to the Controlling Class, the Certificate Administrator shall notify the related Beneficial Owner or Beneficial Owners (through the Depository, unless the Certificate Administrator shall have been previously provided with the name and address of such Beneficial Owner or Beneficial Owners) of such event and shall request that it be informed of any change in the identity of the related Beneficial Owner from time to time.
(g) Until it receives notice to the contrary, each of the Master Servicer, the Special Servicer, the Operating Advisor, the Depositor and the Trustee and the Certificate Administrator shall be entitled to rely on the most recent notification with respect to the identity of the Certificateholders of the Controlling Class and the Controlling Class Representative.
(h) [Reserved].
Appears in 1 contract
Sources: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2013-Gcj16)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan During a Controlling Class Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingPeriod, the Controlling Class Representative shall be entitled to (1) if a Special Servicing Loan Event occurs, advise the Special Servicer with respect to all Specially Serviced Loans, and (2) if a Special Servicing Loan Event has not occurred, advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b6.5(b) and the second and third paragraphs of this Section 6.09(a6.5(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no during a Controlling Class Control Termination Event has occurred and is continuingPeriod, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, provided further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of during a Controlling Class Control Termination Event Period in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan)Certificateholders, the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision prior to, or after the termination of, a Controlling Class Control Period; provided however that, following the occurrence and during the continuance termination of a Controlling Class Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination EventPeriod, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance termination of a Controlling Class Consultation Termination EventPeriod) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special ServicerRepresentative. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan during a Controlling Class Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingPeriod, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage the Whole Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may reasonably deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage the Loan Documents, applicable law, any related the Co-Lender Agreement (including the provisions regarding certain consultation rights with the Companion Loan Holders), applicable law or any intercreditor agreement, this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Accepted Servicing StandardPractices, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan HoldersCertificateholders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage the Loan Documents, the intercreditor agreementprovisions of the Code resulting in an Adverse REMIC Event, applicable law, the REMIC Provisions law or this Agreement, including without limitation, the Accepted Servicing StandardPractices, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 10.17 of this Agreement, the Rule 17g-5 Information Provider Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Accepted Servicing Standard Practices or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will shall have no liability to the Trust Fund Fund, the Certificateholders or the Certificateholders Companion Loan Holders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) following the termination of a Controlling Class Control Period, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and ; (ii) during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Controlling Class Consultation Termination EventPeriod, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after following the occurrence and during the continuance termination of a Controlling Class Consultation Termination EventPeriod, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in . In the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the event that no Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect has been appointed or identified to the AB Whole Loan Servicer or any related REO Propertythe Special Servicer, as applicable, and instead all the Servicer or Special Servicer, as applicable, has attempted to obtain such rightsinformation from the Certificate Administrator, in addition to any other rights provided for under then the related Co-Lender AgreementServicer or the Special Servicer, as applicable, shall be exercised by have no duty to consult with, provide notice to, or seek the related Whole Loan Directing Holder; and (v) in the case approval or consent of the WPC Department Store Portfolio Whole Loan, the any such Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing HolderRepresentative.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Class D Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Class D Certificate (or the beneficial ownership of any Control Eligible Class D Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Class D Certificate (or the beneficial ownership interest in a Control Eligible Class D Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Servicer and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Class D Certificate. In addition, upon the request of the Servicer, the Special Servicer or the Trustee, as applicable, the Certificate Administrator shall provide (on a reasonably prompt basis) the identity of the then current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement, or otherwise at the expense of the requesting party and each of the Servicer, the Special Servicer and the Trustee shall be entitled to rely on such information so provided by the Certificate Administrator. If at any time that any successor Controlling Class Representative or Controlling Class Certificateholder(s) is no longer the Holder (or Beneficial Owner) of at least a majority of the Controlling Class by Certificate Balance and the Certificate Registrar has neither (i) received notice of the then current Controlling Class Certificateholders of at least a majority of the Controlling Class by Certificate Balance nor (ii) received notice of a replacement Controlling Class Representative pursuant to this Agreement, then a Control Termination Event and a Consultation Termination Event shall be deemed to have occurred and shall be deemed to continue until such time as the Certificate Administrator receives either such notice. Upon receipt of notice of a change in Controlling Class Representative, the Certificate Administrator shall promptly forward notice thereof to each other party to this Agreement.
(d) If at any time a book entry certificate belongs to the Controlling Class, the Certificate Administrator shall contact the related Beneficial Owner or Beneficial Owners (through the Depository, unless the Certificate Administrator shall have been previously provided with the name and address of such Beneficial Owner or Beneficial Owners) and shall request that it be informed of any change in the identity of the related Beneficial Owner from time to time.
(e) Immediately upon obtaining actual knowledge that the Controlling Class Certificateholder or Controlling Class Representative is a Borrower Affiliate, any Certificateholder, a Companion Loan Holder, the Controlling Class Representative if the Controlling Class Representative is not a Certificateholder (and only during a Controlling Class Control Period and Controlling Class Consultation Period), a Beneficial Owner or a prospective purchaser of a Certificate (or any investment manager of the foregoing), as the case may be, shall provide notice in the form of Exhibit Y-3 hereto to the Servicer, the Special Servicer, the Trustee and the Certificate Administrator, which such notice shall be physically delivered in accordance with Section 10.4 and Section 8.14(b) of this Agreement.
(f) Until it receives notice to the contrary, each of the Servicer, the Special Servicer the Depositor and the Trustee and the Certificate Administrator shall be entitled to rely on the most recent notification with respect to the identity of the Certificateholders of the Controlling Class and the Controlling Class Representative.
Appears in 1 contract
Sources: Trust and Servicing Agreement (CSAIL 2016-C5 Commercial Mortgage Trust)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for For so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to advise (1) advise the Special Servicer with respect to all Specially Serviced Loans, Mortgage Loans and (2) advise the Special Servicer with respect to non-Specially Serviced Mortgage Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b), Section 6.09(c) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 90 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 90 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty thirty (2030) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty thirty (2030) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, further, further that, in the event that the Special Servicer or Master ServicerServicer (in the event the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced the Whole Loan (if applicable)Loan, the related Serviced Companion Loan Holder(s) Holder (as a collective whole as if such Certificateholders and, if applicable, the related Serviced and Companion Loan Holder(s) Holder constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced the Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan HoldersCertificateholders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreementIntercreditor Agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, that the rights of the Controlling Class Representative are subject to the related Co-Lender Intercreditor Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; and (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder or its designee is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a the Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole any Mortgage Loan, the related Co-Lender Intercreditor Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Controlling Class Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such a Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or of the beneficial ownership of any Control Eligible Certificate)Controlling Class, the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator will notify the Special Servicer and the Master Servicer of the identity of the Controlling Class Representative and any resignation or removal thereof. In addition, upon the request of the Master Servicer, the Special Servicer or the Trustee, as applicable, the Certificate Administrator shall provide the name of the then-current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement, and otherwise at the expense of the requesting party) of the Controlling Class to such requesting party.
(e) Once a Controlling Class Representative has been selected pursuant to clause (d) above, each of the Master Servicer, the Special Servicer, the Operating Advisor, the Depositor, the Certificate Administrator, the Trustee and each other Certificateholder (or Beneficial Owner, if applicable) shall be entitled to rely on such selection unless a majority of the Certificateholders of the Controlling Class, by Certificate Principal Amount, or such Controlling Class Representative shall have notified the Certificate Administrator, the Master Servicer and each other Certificateholder of the Controlling Class, in writing, of the resignation of such Controlling Class Representative or the selection of a new Controlling Class Representative. Upon receipt of written notice of, or other knowledge of, the resignation of a Controlling Class Representative, the Certificate Administrator shall request the Certificateholders of the Controlling Class to select a new Controlling Class Representative.
(f) If at any time a book-entry certificate belongs to the Controlling Class, the Certificate Administrator shall notify the related Beneficial Owner or Beneficial Owners (through the Depository, unless the Certificate Administrator shall have been previously provided with the name and address of such Beneficial Owner or Beneficial Owners) of such event and shall request that it be informed of any change in the identity of the related Beneficial Owner from time to time.
(g) Until it receives notice to the contrary, each of the Master Servicer, the Special ServServicer, the Operating Advisor, the Depositor, the Trustee and the Certificate Administrator shall be entitled to rely on the most recent notification with respect to the identity of the Certificateholders of the Controlling Class and the Controlling Class Representative.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2011-Gc5)
The Controlling Class Representative. (a) Other than with respect The Holder or Holders of the Certificates evidencing a majority of the Voting Rights allocated to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class may select a representative (the "Controlling Class Representative") from whom the Special Servicer will seek advice and approval and take direction under certain circumstances as described herein. The Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loansthe following actions of the Special Servicer, (2) advise and the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected approved such action in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; such notice (provided that if such written objection notice has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicableDays, then the Controlling Class Representative Representative's approval will be deemed to have approved such action; provided, further, that, in the event that the Special Servicer been given):
(i) any foreclosure upon or Master Servicer, as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent comparable conversion (which may include acquisitions of an REO Property) of the Controlling Class Representative prior to ownership of properties securing such of the occurrence Specially Serviced Mortgage Loans as come into and continuance continue in default;
(ii) any modification of a Control Termination Event in this Agreement, is necessary to protect the interests monetary term of a Mortgage Loan other than a modification consisting of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case extension of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance maturity date of a Control Termination Event; provided that, after the occurrence and during the continuance Mortgage Loan for one year or less;
(iii) any proposed sale of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative Defaulted Mortgage Loan or REO Property (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor other than in connection with the termination of the Trust Fund);
(iv) any Major Decision and consider alternative actions recommended by determination to bring an REO Property into compliance with applicable environmental laws;
(v) any acceptance of substitute or additional collateral or release of collateral for a Mortgage Loan, except as otherwise required under the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, Mortgage Loan documents;
(vi) any waiver of a "due-on-sale" or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance "due-on-encumbrance" clause;
(vii) any acceptance of such Control Termination Eventan assumption agreement releasing a borrower from liability under a Mortgage Loan; provided that such consultation is not binding on the Special Servicerand
(viii) any acceptance of a discounted pay-off. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, ; provided that no such direction, and no objection contemplated by the preceding paragraph direction or approval rights provided in this paragraph, Section 6.11 may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, Standard or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s 's responsibilities hereunder or cause the Master Servicer or hereunder. Any reasonable out-of-pocket expenses incurred by the Special Servicer to act, or fail to act, in a manner which in connection with its obtaining the reasonable judgment approval of the Master Servicer or Controlling Class Representative shall be treated as a Servicing Advance and the Special Servicer is not shall be entitled to reimbursement in the best interests of the Certificateholders and/or the Serviced Companion Loan Holdersrespect thereof pursuant to Section 3.05(a). In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative any direction or any advice from objection of the Controlling Class Representative would otherwise cause the Special Servicer or to violate this Agreement, expose the Master Servicer, as applicable, to violate the terms of any Mortgage Loan DocumentsSpecial Servicer, the intercreditor agreement, applicable law, Trust Fund or Trustee to liability or materially expand the REMIC Provisions or this Agreement, including without limitation, scope of the Servicing StandardSpecial Servicer's responsibilities, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval sole remedy of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part shall be to seek removal of the Master Special Servicer or and the Special ServicerServicer shall have no other liability with respect to such action. Any such removal shall be deemed a removal of the Special Servicer without cause. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for error errors in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that which would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance exercise of duties its rights or by reason of negligent reckless disregard in the exercise of obligations or dutiesits rights. By its acceptance of a Certificate, each Certificateholder acknowledges confirms its understanding that the Controlling Class Representative may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and agrees that: (i) that the Controlling Class Representative may have special relationships and interests that conflict with those of Holders holders of one or more some Classes of Certificates; (ii) the Controlling Class Representative may act solely in Certificates and, absent willful misfeasance, bad faith or gross negligence on the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders part of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have Representative, agrees to take no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliateof its officers, directordirectors, memberemployees, officerprincipals or agents as a result of such a special relationship or conflict, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of and that the Controlling Class Representative are subject will not be deemed to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund been grossly negligent or the Certificateholders for any action takenreckless, or for refraining from the taking to have acted in bad faith or engaged in willful misfeasance or to have recklessly disregarded any exercise of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, rights by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, Controlling Class and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall Class Representative will have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv-148-
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Mortgage Pass Through Cert Series 1998-C3)
The Controlling Class Representative. (a) Other than with respect Subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the following actions of the Special Servicer with respect to non-Specially Serviced the Trust Mortgage Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent and any REO Properties (exclusive of the Special Servicer for a Major DecisionWestchester Trust Mortgage Loan or any related REO Property), and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, contrary except as necessary or advisable to avoid an Adverse REMIC Event and except as set forth in, and in any event subject to to, Section 6.09(b) and the second and third paragraphs of this Section 6.09(a6.11(b), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take (or permit the Master Servicer to take) any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) Trust Mortgage Loans and any REO Properties (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right exclusive of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 Westchester Trust Mortgage Loan or Section 3.24any related REO Property) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) 10 Business Days of being notified in writing thereof, which notification with respect to the action described in clauses (or in the case of a determination of an Acceptable Insurance Default, twenty vi) and (20viii) days) after receipt of the written recommendation and analysis from below shall be copied by the Special Servicer; Servicer to the Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten (10) 10 Business Day period period, then the Controlling Class Representative's approval will be deemed to have been given):
(i) any foreclosure upon or twenty comparable conversion (20which may include acquisitions of an REO Property) day periodof the ownership of properties securing such of the Trust Specially Serviced Mortgage Loans as come or have come into and continue in default;
(ii) any modification or consent to a modification of a material term of a Trust Mortgage Loan (excluding the waiver of any due-on-sale or due-on-encumbrance clause, as set forth in clause (vii) below), including the timing of payments or a modification consisting of the extension of the maturity date of a Trust Mortgage Loan;
(iii) any proposed sale of any Trust Defaulted Mortgage Loan or any REO Property (other than in connection with the termination of the Trust Fund or, in the case of a Trust Defaulted Mortgage Loan, pursuant to Section 3.18) for less than the Purchase Price of the subject Trust Defaulted Mortgage Loan or related Trust REO Loan, as applicable;
(iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property;
(v) any release of material real property collateral for any Trust Mortgage Loan, then other than (A) where the release is not conditioned upon obtaining the consent of the lender or certain specified conditions being satisfied, (B) upon satisfaction of that Trust Mortgage Loan, (C) in connection with a pending or threatened condemnation action or (D) in connection with a full or partial defeasance of that Trust Mortgage Loan;
(vi) any acceptance of substitute or additional real property collateral for any Trust Mortgage Loan (except where the acceptance of the substitute or additional collateral is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative will be deemed required);
(vii) any waiver of a due-on-sale or due-on-encumbrance clause in any Trust Mortgage Loan;
(viii) any releases of earn-out reserves or related letters of credit with respect to have approved a Mortgaged Property securing a Trust Mortgage Loan (other than where the release is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative will be required);
(ix) any termination or replacement, or consent to the termination or replacement, of a property manager with respect to any Mortgaged Property or any termination or change, or consent to the termination or change, of the franchise for any Mortgaged Property operated as a hospitality property (other than where the action is not conditioned upon obtaining the consent of the lender, in which case only prior notice to the Controlling Class Representative will be required);
(x) any determination that an insurance-related default in respect of a Trust Mortgage Loan is an Acceptable Insurance Default or that earthquake or terrorism insurance is not available at commercially reasonable rates; and
(xi) any waiver of insurance required under the related Mortgage Loan documents for a Trust Mortgage Loan (except as contemplated in clause (x) above); provided that, with respect to any Trust Mortgage Loan (other than a Trust Specially Serviced Mortgage Loan), the 10 Business Days within which the Controlling Class Representative must object to any such actionaction shall not exceed by more than five Business Days the 10 Business Day period the Special Servicer has to object to the Master Servicer taking such action as set forth in Sections 3.02, 3.08 and 3.20; and provided, further, that, in the event that the Special Servicer or Master Servicer, as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent foregoing rights of the Controlling Class Representative prior shall not apply to the occurrence Westchester Trust Mortgage Loan or any related REO Property, in which case the rights and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests powers of the Certificateholders and, with respect to any Serviced Whole Loan (if specified Persons set forth under Section 6.12 are instead applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, any such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. .
(b) Notwithstanding anything herein to the contrary, no such directionadvice, and no direction or objection given or made, or consent withheld, by the Controlling Class Representative, contemplated by the preceding paragraph Section 6.11(a) or any other section of this paragraphAgreement, may (i) require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, the terms of any related Co-Lender Agreement or Trust Mortgage Loan, any intercreditor agreement, provision of this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the Master Servicer’s and 's or the Special Servicer’s 's obligation to act in accordance with the Servicing StandardStandard or the Mortgage Loan documents for any Trust Mortgage Loan, (ii) result in an Adverse REMIC Event with respect to REMIC I or REMIC II or otherwise violate the REMIC Provisions or result in an Adverse Grantor Trust Event or have adverse tax consequences for the Trust Fund, (iii) expose the Depositor, the Master Servicer, the Special Servicer, the Certificate AdministratorTrust Fund, the Trust Trustee, any Fiscal Agent or the Trustee any of their respective Affiliates, directors, officers, employees or agents, to liabilityany claim, suit or liability to which they would not otherwise be subject absent such advice, direction or objection or consent withheld, (iv) materially expand the scope of the Master Servicer’s 's or the Special Servicer’s 's responsibilities hereunder or (v) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in violates the reasonable judgment of the Servicing Standard. The Master Servicer or and the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent any action, direction or advise and notify in writing objection on the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval part of the Controlling Class Representative that does would have any of the effects described in clauses (i) through (v) of the prior sentence. The Special Servicer shall not violate be obligated to seek approval from the Controlling Class Representative under Section 6.11(a) for any law actions to be taken by the Special Servicer with respect to any particular Trust Specially Serviced Mortgage Loan if (i) the Special Servicer has, as set forth in the first paragraph of Section 6.11(a), notified the Controlling Class Representative in writing of various actions that the Special Servicer proposes to take with respect to the work-out or liquidation of that Trust Mortgage Loan and (ii) for 60 days following the first such notice, the Controlling Class Representative has objected to all of the proposed actions and has failed to suggest any alternative actions that the Special Servicer considers to be consistent with the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. Standard.
(c) The Controlling Class Representative will have no duty or liability to the Trust Fund or Certificateholders (other than the Certificateholders Controlling Class) for any action taken, or for refraining from the taking of any action, action pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees confirms its understanding that any such Non-Serviced Whole Loan the Controlling Holder, with respect to the related Non-Serviced Whole Loan, Class Representative may take actions that favor the interests of one or more classes Classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement Certificates over other Classes of the Certificates, and that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may act solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, that such Non-Serviced Whole Loan the Controlling HolderClass Representative does not have any duties to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class Representative shall not be liable to any Certificateholder, have no liability by reason of its having acted solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so actedClass, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-McP1)
The Controlling Class Representative. (a) Other than with respect Subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the following actions of the Special Servicer with respect to non-Specially Serviced the Trust Mortgage Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent and any REO Properties (exclusive of the Special Servicer for a Major DecisionGreat Mall Trust Mortgage Loan or any related REO Property), and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, contrary except as necessary or advisable to avoid an Adverse REMIC Event and except as set forth in, and in any event subject to to, Section 6.09(b) and the second and third paragraphs of this Section 6.09(a6.11(b), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take (or permit the Master Servicer to take) any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) Trust Mortgage Loans and any REO Properties (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right exclusive of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 Great Mall Trust Mortgage Loan or Section 3.24any related REO Property) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days of being notified in writing thereof, which notification with respect to the action described in clauses (or in the case of a determination of an Acceptable Insurance Default, twenty vi) and (20viii) days) after receipt of the written recommendation and analysis from below shall be copied by the Special Servicer; Servicer to the Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period period, then the Controlling Class Representative's approval will be deemed to have been given):
(i) any foreclosure upon or twenty comparable conversion (20which may include acquisitions of an REO Property) day periodof the ownership of properties securing such of the Trust Specially Serviced Mortgage Loans as come into and continue in default;
(ii) any modification or consent to a modification of a material term of a Trust Mortgage Loan (excluding the waiver of any due-on-sale or due-on-encumbrance clause, as set forth in clause (vii) below), including the timing of payments or a modification consisting of the extension of the maturity date of a Trust Mortgage Loan;
(iii) any proposed sale of any Trust Defaulted Mortgage Loan or any REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18) for less than the Purchase Price of the subject Trust Defaulted Mortgage Loan or related Trust REO Loan, as applicable;
(iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property;
(v) any release of material real property collateral for any Trust Mortgage Loan, then other than (A) where the release is not conditioned upon obtaining the consent of the lender or (B) upon satisfaction of that Trust Mortgage Loan;
(vi) any acceptance of substitute or additional real property collateral for any Trust Mortgage Loan (except where the acceptance of the substitute or additional collateral is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative will be deemed required);
(vii) any waiver of a due-on-sale or due-on-encumbrance clause in any Trust Mortgage Loan;
(viii) any releases of earn-out reserves or related letters of credit with respect to have approved a Mortgaged Property securing a Trust Mortgage Loan (other than where the release is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative will be required);
(ix) any termination or replacement, or consent to the termination or replacement, of a property manager with respect to any Mortgaged Property or any termination or change, or consent to the termination or change, of the franchise for any Mortgaged Property operated as a hospitality property (other than where the action is not conditioned upon obtaining the consent of the lender, in which case only prior notice to the Controlling Class Representative will be required);
(x) any determination that an insurance-related default in respect of a Trust Mortgage Loan is an Acceptable Insurance Default or that earthquake or terrorism insurance is not available at commercially reasonable rates; and
(xi) any waiver of insurance required under the related Mortgage Loan Documents for a Trust Mortgage Loan (except as contemplated in clause (x) above); provided that, with respect to any Trust Mortgage Loan (other than a Trust Specially Serviced Mortgage Loan), the ten Business Days within which the Controlling Class Representative must object to any such actionaction shall not exceed by more than five Business Days the ten Business Day period the Special Servicer has to object to the Master Servicer taking such action as set forth in Sections 3.02, 3.08 and 3.20; and provided, further, that, in the event that the Special Servicer or Master Servicer, as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent foregoing rights of the Controlling Class Representative prior shall not apply to the occurrence Great Mall Trust Mortgage Loan or any related REO Property, in which case the rights and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests powers of the Certificateholders and, with respect to any Serviced Whole Loan (if specified Persons set forth under Section 6.12 are instead applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, any such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. .
(b) Notwithstanding anything herein to the contrary, no such directionadvice, and no direction or objection given or made, or consent withheld, by the Controlling Class Representative, contemplated by the preceding paragraph Section 6.11(a) or any other section of this paragraphAgreement, may (i) require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, the terms of any related Co-Lender Agreement or Trust Mortgage Loan, any intercreditor agreement, provision of this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the Master Servicer’s and the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or the Mortgage Loan Documents for any Trust Mortgage Loan, (ii) result in an Adverse REMIC Event with respect to REMIC I or REMIC II or otherwise violate the REMIC Provisions or have adverse tax consequences for the Trust Fund, (iii) expose the Depositor, the Master Servicer, the Special Servicer, the Certificate AdministratorTrust Fund, the Trust Trustee or the Trustee any of their respective Affiliates, directors, officers, employees or agents, to any material claim, suit or liability, or (iv) materially expand the scope of the Master Servicer’s 's or the Special Servicer’s 's responsibilities hereunder or (v) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, violates the Servicing Standard, the . The Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent any action, direction or advise and notify in writing objection on the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval part of the Controlling Class Representative that does would have any of the effects described in clauses (i) through (v) of the prior sentence. The Special Servicer shall not violate be obligated to seek approval from the Controlling Class Representative under Section 6.11(a) for any law actions to be taken by the Special Servicer with respect to any particular Trust Specially Serviced Mortgage Loan if (i) the Special Servicer has, as set forth in the first paragraph of Section 6.11(a), notified the Controlling Class Representative in writing of various actions that the Special Servicer proposes to take with respect to the work-out or liquidation of that Trust Mortgage Loan and (ii) for 60 days following the first such notice, the Controlling Class Representative has objected to all of the proposed actions and has failed to suggest any alternative actions that the Special Servicer considers to be consistent with the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. Standard.
(c) The Controlling Class Representative will have no duty or liability to the Trust Fund or Certificateholders (other than the Certificateholders Controlling Class) for any action taken, or for refraining from the taking of any action, action pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees confirms its understanding that any such Non-Serviced Whole Loan the Controlling Holder, with respect to the related Non-Serviced Whole Loan, Class Representative may take actions that favor the interests of one or more classes Classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement Certificates over other Classes of the Certificates, and that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may act solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, that such Non-Serviced Whole Loan the Controlling HolderClass Representative does not have any duties to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class Representative shall not be liable to any Certificateholder, have no liability by reason of its having acted solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so actedClass, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc Trust 2004-Mkb1)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan During a Subordinate Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingPeriod, the Controlling Class Representative shall be entitled to advise (1) advise the Special Servicer with respect to all Specially Serviced Loans, Mortgage Loans and (2) advise the Special Servicer with respect to non-Specially Serviced Mortgage Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicableDays, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no during a Subordinate Control Termination Event has occurred and is continuingPeriod, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, further, further that, in the event that the Special Servicer or Master ServicerServicer (in the event the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of during a Subordinate Control Termination Event Period in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable)the Split Loan, the related Serviced Companion Loan Holder(s) Holder (as a collective whole as if such Certificateholders and, if applicable, the related Serviced and Companion Loan Holder(s) Holder constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Collective Consultation Period or a Senior Control Termination EventPeriod; provided that, after the occurrence and during the continuance of a Control Termination EventCollective Consultation Period, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such during a Subordinate Control Termination Event; provided that such consultation is not binding on the Special ServicerPeriod. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan during a Subordinate Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingPeriod, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole the Split-Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan HoldersCertificateholders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreementIntercreditor Agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 11.14 of this Agreement, the Rule 17g-5 Information Provider Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, that the rights of the Controlling Class Representative are subject to the related Co-Lender Intercreditor Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) during a Collective Consultation Period, , the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and ; (ii) during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Collective Consultation Termination EventPeriod, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Senior Consultation Termination EventPeriod, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; and (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder or its designee is the related Whole Loan [_____] Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 6.10(a) with respect to the AB Whole [_____] Split-Loan or any related REO Property.
(c) Notwithstanding anything to the contrary contained herein, and instead all such rightsfor so long as the Companion Loan Holder or its designee is the [_____] Directing Holder, in addition to any other rights provided for under the related Co-Lender Agreement, [_____] Directing Holder shall be exercised by entitled to exercise with respect to the [_____] Split-Loan or related Whole Loan Directing Holder; and (v) in the case REO Property all of the WPC Department Store Portfolio Whole Loan, Subordinate Control Period rights and powers of the Controlling Class Representative will not be entitled to exercise any set forth in Section 6.10(a), as well as all of the rights in this Section 6.09 with respect to and powers of the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for [_____] Directing Holder under the related Co-Lender Intercreditor Agreement, shall . The rights of the Companion Loan Holder or its designee as [_____] Directing Holder will be exercised unaffected by the related WPC Department Store Portfolio Directing Holdercommencement of a Collective Consultation Period or Senior Consultation Period.
(cd) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall be required to take or refrain from taking any action pursuant to instructions or based upon advice from a Whole the Split-Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole any Mortgage Loan, the related Co-Lender Intercreditor Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing StandardCertificateholders.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 1 contract
Sources: Pooling and Servicing Agreement (CCRE Commercial Mortgage Securities, L.P.)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the The Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent following actions of the Special Servicer for a Major DecisionServicer, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, contrary except as necessary or advisable to avoid an Adverse REMIC Event and except as set forth in, and in any event subject to Section 6.09(b) and to, the second and third paragraphs paragraph of this Section 6.09(a)6.11, both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days of being notified thereof, which notification with respect to the action described in clauses (or in the case of a determination of an Acceptable Insurance Default, twenty vi) and (20viii) days) after receipt of the written recommendation and analysis from below shall be copied by the Special Servicer; Servicer to the Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative Representative's approval will be deemed to have approved such action; provided, further, that, in the event that the Special Servicer been given):
(i) any foreclosure upon or Master Servicer, as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent comparable conversion (which may include acquisitions of an REO Property) of the Controlling Class Representative prior to ownership of properties securing such of the occurrence Specially Serviced Mortgage Loans as come into and continuance continue in default;
(ii) any modification of a Control Termination Event in this Agreement, is necessary to protect the interests Money Term of a Mortgage Loan other than a modification consisting of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case extension of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account maturity date of a Mortgage Loan for one year or less;
(iii) any proposed sale of an REO Property (other than in connection with the subordinate nature termination of the Trust Fund or pursuant to Section 3.18) for less than the outstanding principal balance of the related Subordinate Companion REO Loan, plus accrued interest (exclusive of Penalty Interest and Additional Interest), ;
(iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property;
(v) any acceptance of substitute or additional collateral for a Mortgage Loan unless required by the Special Servicer underlying loan documents;
(vi) any waiver of a "due-on-sale" clause or Master Servicer, as applicable, may take "due-on-encumbrance" clause (other than assumptions);
(vii) any such action without waiting for the Controlling Class Representative’s acceptance of an assumption agreement releasing a borrower from liability under a Mortgage Loan;
(or, if applicable, the Special Servicer’s (but only with respect to a nonviii) any determination that an insurance-Specially Serviced Loan)) response. The Special Servicer related default is an Acceptable Insurance Default or that earthquake or terrorism insurance is not available at commercially reasonable rates; and
(ix) any waiver of insurance required to obtain under the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicerrelated Mortgage Loan. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding ; provided that notwithstanding anything herein to the contrary, contrary no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision applicable law, the terms of any Mortgage Loan Documents, applicable lawLoan, any related Co-Lender Agreement or any intercreditor agreement, provision of this Agreement or the REMIC ProvisionsProvisions (and the Special Servicer shall disregard any such direction or objection), including without limitation each of the Master Servicer’s and the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate AdministratorTrust Fund, the Trust Trustee or the Trustee Fiscal Agent to liability, or materially expand the scope of the Master Servicer’s Special Servicer or the Special Servicer’s 's responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan HoldersCertificateholders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. 169 The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for error errors in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) confirms its understanding that the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes Classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement Certificates over other Classes of the Certificates, and that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may act solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, that such Non-Serviced Whole Loan the Controlling HolderClass Representative does not have any duties to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class Representative shall not be liable deemed to any Certificateholderhave been negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance, by reason of its having acted solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
The Controlling Class Representative. (a) Other than with respect Subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the following actions of the Special Servicer with respect to non-Specially Serviced the Trust Mortgage Loans as to all matters for which and any REO Properties (other than the Master Servicer must obtain Kenwood Towne Centre Trust Mortgage Loan or the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Combined Trust Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special ServicerLoan and, in each case, any related Loan Combination REO Property, as to which the extent the holder provisions of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In additionSection 6.12 shall apply), and notwithstanding anything herein to the contrary, contrary except as necessary or advisable to avoid an Adverse REMIC Event and except as set forth in, and in any event subject to to, Section 6.09(b) and the second and third paragraphs of this Section 6.09(a6.11(b), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take (or permit the Master Servicer to take) any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) Trust Mortgage Loans and any REO Properties (from other than the date that Kenwood Towne Centre Trust Mortgage Loan or the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Combined Trust Mortgage Loan and, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisionseach case, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 daysany related Loan Combination REO Property, as applicable, to which the Special Servicer provisions of Section 6.12 shall be deemed to have consented to such Major Decisionapply) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) 10 Business Days of being notified in writing thereof, which notification with respect to the action described in clauses (or in the case of a determination of an Acceptable Insurance Default, twenty vi) and (20viii) days) after receipt of the written recommendation and analysis from below shall be copied by the Special Servicer; Servicer to the Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten (10) 10 Business Day period period, then the Controlling Class Representative's approval will be deemed to have been given):
(i) any foreclosure upon or twenty comparable conversion (20which may include acquisitions of an REO Property) day periodof the ownership of properties securing such of the Trust Specially Serviced Mortgage Loans as come or have come into and continue in default;
(ii) any modification or consent to a modification of a material term of a Trust Mortgage Loan (excluding the waiver of any due-on-sale or due-on-encumbrance clause, as set forth in clause (vii) below), including the timing of payments or a modification consisting of the extension of the maturity date of a Trust Mortgage Loan;
(iii) any proposed sale of any Trust Defaulted Mortgage Loan or any REO Property (other than in connection with the termination of the Trust Fund or, in the case of a Trust Defaulted Mortgage Loan, pursuant to Section 3.18) for less than the Purchase Price of the subject Trust Defaulted Mortgage Loan or related Trust REO Loan, as applicable;
(iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property;
(v) any release of material real property collateral for any Trust Mortgage Loan, then other than (A) where the release is not conditioned upon obtaining the consent of the lender or certain specified conditions being satisfied, (B) upon satisfaction of that Trust Mortgage Loan, (C) in connection with a pending or threatened condemnation action or (D) in connection with a full or partial defeasance of that Trust Mortgage Loan;
(vi) any acceptance of substitute or additional real property collateral for any Trust Mortgage Loan (except where the acceptance of the substitute or additional collateral is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative will be deemed to have approved such action; provided, further, that, required);
(vii) any waiver of a due-on-sale or due-on-encumbrance clause in the event that the Special Servicer any Trust Mortgage Loan;
(viii) any releases of earn-out reserves or Master Servicer, as applicable, determines that immediate action, related letters of credit with respect to a Major Decision, or any Mortgaged Property securing a Trust Mortgage Loan (other matter requiring than where the release is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative prior will be required;
(ix) any termination or replacement, or consent to the occurrence and continuance termination or replacement, of a Control Termination Event in this Agreementproperty manager with respect to any Mortgaged Property or any termination or change, is necessary or consent to protect the interests termination or change, of the Certificateholders franchise for any Mortgaged Property operated as a hospitality property (other than where the action is not conditioned upon obtaining the consent of the lender, in which case only prior notice to the Controlling Class Representative will be required);
(x) any determination that an insurance-related default in respect of a Trust Mortgage Loan is an Acceptable Insurance Default or that earthquake or terrorism insurance is not available at commercially reasonable rates; and
(xi) any waiver of insurance required under the related Mortgage Loan documents for a Trust Mortgage Loan (except as contemplated in clause (x) above); provided that, with respect to any Serviced Whole Trust Mortgage Loan (if applicable), the related other than a Trust Specially Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Mortgage Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of 10 Business Days within which the Controlling Class Representative for must object to any Major Decision following such action shall not exceed by more than five Business Days the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, 10 Business Day period the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only has to object to the extent Master Servicer taking such consultation withaction as set forth in Sections 3.02, or consent of, the Controlling Class Representative would have been required prior to the occurrence 3.08 and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer3.20. In addition, other than with respect subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, any such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. .
(b) Notwithstanding anything herein to the contrary, no such directionadvice, and no direction or objection given or made, or consent withheld, by the Controlling Class Representative, contemplated by the preceding paragraph Section 6.11(a) or any other section of this paragraphAgreement, may (i) require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, the terms of any related Co-Lender Agreement or Trust Mortgage Loan, any intercreditor agreement, provision of this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the Master Servicer’s and 's or the Special Servicer’s 's obligation to act in accordance with the Servicing StandardStandard or the Mortgage Loan documents for any Trust Mortgage Loan, (ii) result in an Adverse REMIC Event with respect to REMIC I or REMIC II or otherwise violate the REMIC Provisions or result in an Adverse Grantor Trust Event or have adverse tax consequences for the Trust Fund, (iii) expose the Depositor, the Master Servicer, the Special Servicer, the Certificate AdministratorTrust Fund, the Trust Trustee, any Fiscal Agent or the Trustee any of their respective Affiliates, directors, officers, employees or agents, to liabilityany claim, suit or liability to which they would not otherwise be subject absent such advice, direction or objection or consent withheld, (iv) materially expand the scope of the Master Servicer’s 's or the Special Servicer’s 's responsibilities hereunder or (v) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in violates the reasonable judgment of the Servicing Standard. The Master Servicer or and the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent any action, direction or advise and notify in writing objection on the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval part of the Controlling Class Representative that does would have any of the effects described in clauses (i) through (v) of the prior sentence. The Special Servicer shall not violate be obligated to seek approval from the Controlling Class Representative under Section 6.11(a) for any law actions to be taken by the Special Servicer with respect to any particular Trust Specially Serviced Mortgage Loan if (i) the Special Servicer has, as set forth in the first paragraph of Section 6.11(a), notified the Controlling Class Representative in writing of various actions that the Special Servicer proposes to take with respect to the work-out or liquidation of that Trust Specially Serviced Mortgage Loan and (ii) for 60 days following the first such notice, the Controlling Class Representative has objected to all of the proposed actions and has failed to suggest any alternative actions that the Special Servicer considers to be consistent with the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. Standard.
(c) The Controlling Class Representative will have no duty or liability to the Trust Fund or Certificateholders (other than the Certificateholders Controlling Class) for any action taken, or for refraining from the taking of any action, action pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees confirms its understanding that any such Non-Serviced Whole Loan the Controlling Holder, with respect to the related Non-Serviced Whole Loan, Class Representative may take actions that favor the interests of one or more classes Classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement Certificates over other Classes of the Certificates, and that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may act solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, that such Non-Serviced Whole Loan the Controlling HolderClass Representative does not have any duties to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class Representative shall not be liable to any Certificateholder, have no liability by reason of its having acted solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so actedClass, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 1 contract
Sources: Pooling and Servicing Agreement (MLCFC Commercial Mortgage Trust Series 2006-1)
The Controlling Class Representative. (a) Other than with respect Subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the following actions of the Special Servicer with respect to non-Specially the Serviced Trust Mortgage Loans as to all matters for which (excluding the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision▇▇▇▇▇▇ Farms Plaza Loan Combination) and any Administered REO Properties, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as necessary or advisable to avoid an Adverse REMIC Event and except as set forth in, and in any event subject to to, Section 6.09(b) and the second and third paragraphs of this Section 6.09(a6.11(b), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take (or permit the applicable Master Servicer to take) any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze Serviced Trust Mortgage Loans and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision Administered REO Properties as to which the Controlling Class Representative has objected in writing within ten (10) 10 Business Days of being notified in writing thereof, which notification with respect to the action described in clauses (or in the case of a determination of an Acceptable Insurance Default, twenty vi) and (20viii) days) after receipt of the written recommendation and analysis from below shall be copied by the Special Servicer; Servicer to the applicable Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten (10) 10 Business Day period period, then the Controlling Class Representative's approval will be deemed to have been given):
(i) any foreclosure upon or twenty comparable conversion (20which may include acquisitions of an Administered REO Property) day periodof the ownership of properties securing such of the Trust Specially Serviced Mortgage Loans as come or have come into and continue in default;
(ii) any modification or consent to a modification of a material term of a Serviced Trust Mortgage Loan (excluding the waiver of any due-on-sale or due-on-encumbrance clause, as set forth in clause (vii) below), including the timing of payments or a modification consisting of the extension of the maturity date of a Serviced Trust Mortgage Loan;
(iii) any proposed sale of any Serviced Trust Defaulted Mortgage Loan or any Administered REO Property (other than in connection with the termination of the Trust Fund or, in the case of a Serviced Trust Defaulted Mortgage Loan, pursuant to Section 3.18) for less than the Purchase Price of the subject Trust Defaulted Mortgage Loan or related Trust REO Loan, as applicable;
(iv) any determination to bring an Administered REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an Administered REO Property;
(v) any release of material real property collateral for any Serviced Trust Mortgage Loan, then other than (A) where the release is not conditioned upon obtaining the consent of the lender or certain specified conditions being satisfied, (B) upon satisfaction of that Serviced Trust Mortgage Loan, (C) in connection with a pending or threatened condemnation action or (D) in connection with a full or partial defeasance of that Serviced Trust Mortgage Loan;
(vi) any acceptance of substitute or additional real property collateral for any Serviced Trust Mortgage Loan (except where the acceptance of the substitute or additional collateral is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative will be deemed to have approved such action; provided, further, that, required);
(vii) any waiver of a due-on-sale or due-on-encumbrance clause in the event that the Special Servicer any Serviced Trust Mortgage Loan;
(viii) any releases of earn-out reserves or Master Servicer, as applicable, determines that immediate action, related letters of credit with respect to a Major DecisionMortgaged Property securing a Serviced Trust Mortgage Loan set forth on Schedule VII hereto;
(ix) any termination or replacement, or consent to the termination or replacement, of a property manager with respect to any Serviced Mortgaged Property or any termination or change, or consent to the termination or change, of the franchise for any Serviced Mortgaged Property operated as a hospitality property (other matter requiring than where the action is not conditioned upon obtaining the consent of the lender, in which case only prior notice to the Controlling Class Representative prior to the occurrence and continuance will be required);
(x) any determination that an insurance-related default in respect of a Control Termination Event Serviced Trust Mortgage Loan is an Acceptable Insurance Default or that earthquake or terrorism insurance is not available at commercially reasonable rates; and
(xi) any waiver of insurance required under the related Mortgage Loan documents for a Serviced Trust Mortgage Loan (except as contemplated in this Agreement, is necessary to protect the interests of the Certificateholders andclause (x) above); provided that, with respect to any Serviced Whole Trust Mortgage Loan (if applicableother than a Trust Specially Serviced Mortgage Loan), the related Serviced Companion Loan Holder(s) (10 Business Days within which the Controlling Class Representative must object to any such action shall not exceed by more than five Business Days the 10-Business Day period the Special Servicer has to object to the applicable Master Servicer taking such action as a collective whole as if such Certificateholders andset forth in Sections 3.02, if applicable, 3.08 and 3.20. Notwithstanding the related Serviced Companion Loan Holder(s) constituted a single lender) (andforegoing, in the case of each Serviced Loan Combination (exclusive of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion LoanFarms Loan Combination), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (orshall, if applicablerequired pursuant to the related Loan Combination Co-Lender Agreement, the Special Servicer’s (but only consult with related Non-Trust Loan Holder(s) in respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for foregoing actions and any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor other decisions or actions specified in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special ServicerLoan Combination Co-Lender Agreement. In addition, other than with respect subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior foregoing and to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, any such other actions with respect to a Specially Serviced Mortgage Loans and Administered REO Properties (exclusive of the ▇▇▇▇▇▇ Farms Plaza Loan or Serviced Whole Loan, as applicable, Combination and any related REO Property) as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. .
(b) Notwithstanding anything herein to the contrary, no such directionadvice, and no direction or objection given or made, or consent withheld, by the Controlling Class Representative, contemplated by the preceding paragraph Section 6.11(a) or any other section of this paragraphAgreement, may (i) require or cause the applicable Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, the terms of any related Co-Lender Agreement or Serviced Trust Mortgage Loan, any intercreditor agreement, provision of this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the such Master Servicer’s and 's or the Special Servicer’s 's obligation to act in accordance with the Servicing StandardStandard or the Mortgage Loan documents for any Serviced Trust Mortgage Loan, (ii) result in an Adverse REMIC Event with respect to any REMIC Pool or otherwise violate the REMIC Provisions or result in an Adverse Grantor Trust Event or result in an adverse tax consequence for the Trust Fund, except that the Controlling Class Representative may advise or direct that the Trust Fund earn "net income from foreclosure property" that is subject to tax with the consent of the Special Servicer, if the Special Servicer determines that the net after-tax benefit to Certificateholders is greater than another method of operating or net-leasing the subject REO Property, (iii) expose the Depositor, the applicable Master Servicer, the Special Servicer, the Certificate AdministratorTrust Fund, the Trust Trustee, any Fiscal Agent or the Trustee any of their respective Affiliates, directors, officers, employees or agents, to liabilityany claim, suit or liability to which they would not otherwise be subject absent such advice, direction or objection or consent withheld, (iv) materially expand the scope of the applicable Master Servicer’s 's or the Special Servicer’s 's responsibilities hereunder or (v) cause the applicable Master Servicer or the Special Servicer to act, or fail to act, in a manner which in violates the reasonable judgment Servicing Standard. The applicable Master Servicer and the Special Servicer shall disregard any action, direction or objection on the part of the Controlling Class Representative that would have any of the effects described in clauses (i) through (v) of the prior sentence. In addition, if the applicable Master Servicer or the Special Servicer determines that immediate action is not in necessary to protect the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer(as a collective whole), as applicable, determines that it may take such action without waiting for a refusal to consent by response from the Controlling Class Representative or any advice Representative. The Special Servicer shall not be obligated to seek approval from the Controlling Class Representative would otherwise cause under Section 6.11(a) for any actions to be taken by the Special Servicer or Master Servicer, as applicable, with respect to violate the terms of any particular Trust Specially Serviced Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, if (i) the Special Servicer or Master Servicerhas, as applicableset forth in the first paragraph of Section 6.11(a), shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of notified the Controlling Class Representative in writing of various actions that does not violate the Special Servicer proposes to take with respect to the work-out or liquidation of that Trust Specially Serviced Mortgage Loan and (ii) for 60 days following the first such notice, the Controlling Class Representative has objected to all of the proposed actions and has failed to suggest any law or alternative actions that the Special Servicer considers to be consistent with the Servicing Standard Standard. The Controlling Class Representative may direct servicing actions with respect to the ▇▇▇▇▇▇ Farms Plaza Loan Combination or any other provisions of this Agreement, any related REO Property only to the extent contemplated by Section 3.28 and the related ▇▇▇▇▇▇ Farms Plaza Loan Combination Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. Agreement.
(c) The Controlling Class Representative will have no duty or liability to the Trust Fund or Certificateholders (other than the Certificateholders Controlling Class) for any action taken, or for refraining from the taking of any action, action pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees confirms its understanding that any such Non-Serviced Whole Loan the Controlling Holder, with respect to the related Non-Serviced Whole Loan, Class Representative may take actions that favor the interests of one or more classes Classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement Certificates over other Classes of the Certificates, and that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may act solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, that such Non-Serviced Whole Loan the Controlling HolderClass Representative does not have any duties to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class Representative shall not be liable to any Certificateholder, have no liability by reason of its having acted solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so actedClass, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative or any director, officer, employee, agent or principal thereof for having so acted.
(bd) Notwithstanding anything Any right to the contrary contained herein: (i) take action, grant or withhold any consent or otherwise exercise any right, election or remedy afforded the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to under this AgreementAgreement may, after the occurrence and during the continuance of a Control Termination Event but prior unless otherwise expressly provided herein to the occurrence and continuance of a Consultation Termination Eventcontrary, be affirmatively waived by the Controlling Class Representative shall remain entitled by written notice given to receive any notices, reports the Trustee or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and as applicable. Upon delivery of any other applicable party shall consult with such notice of waiver given by the Controlling Class Representative, any time period (exclusive or otherwise) afforded the Controlling Class Representative in connection with to exercise any action such right, make any such election or grant or withhold any such consent shall thereupon be deemed to be taken or refrained from taking to the extent it would have been required to obtain the consent expired. Any waiver of the Controlling Class Representative but for the occurrence of rights by a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holderset forth above, the shall not be binding any subsequent Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing HolderRepresentative.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 1 contract
Sources: Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2007-9)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for For so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to advise (1) advise the Special Servicer with respect to all Specially Serviced Loans, Mortgage Loans and (2) advise the Special Servicer with respect to non-Specially Serviced Mortgage Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b), Section 6.09(c) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 90 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 90 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty thirty (2030) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty thirty (2030) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, further, further that, in the event that the Special Servicer or Master ServicerServicer (in the event the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced the Whole Loan (if applicable)Loan, the related Serviced Companion Loan Holder(s) Holder (as a collective whole as if such Certificateholders and, if applicable, the related Serviced and Companion Loan Holder(s) Holder constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced the Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan HoldersCertificateholders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreementIntercreditor Agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, that the rights of the Controlling Class Representative are subject to the related Co-Lender Intercreditor Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; and (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder or its designee is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a the Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole any Mortgage Loan, the related Co-Lender Intercreditor Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Controlling Class Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such a Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or of the beneficial ownership of any Control Eligible Certificate)Controlling Class, the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall will notify the Special ServServicer and the Master Servicer of the identity of the Controlling Class Representative and any resignation or removal thereof. In addition, upon the request of the Master Servicer, the Special Servicer or the Trustee, as applicable, the Certificate Administrator shall provide the name of the then-current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement, and otherwise at the expense of the requesting party) of the Controlling Class to such requesting party.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2011-Gc5)
The Controlling Class Representative. (a) Other than with respect Subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event Section 6.12 of this Agreement and the WPC Department Store terms of the ShopKo Portfolio Whole LoanCo-Lender Agreement, prior to in the WPC Department Store case of the ShopKo Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingLoan Combination or any related REO Property, the Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent following actions of the Special Servicer for a Major DecisionServicer, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to Section 6.09(b) and to, the second and third paragraphs paragraph of this Section 6.09(a6.11(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days of being notified thereof and having received the information reasonably necessary to make an informed decision with respect thereto, which notification with respect to the action described in clause (or in the case of a determination of an Acceptable Insurance Default, twenty (20vi) days) after receipt of the written recommendation and analysis from below shall be copied by the Special Servicer; Servicer to the Master Servicer (provided that that, if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative Representative's approval will be deemed to have approved been given): 208
(i) any foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such actionof the Specially Serviced Mortgage Loans as come into and continue in default;
(ii) any modification of a Money Term (other than late payment charge and Default Interest provisions) of a Mortgage Loan, but excluding a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less;
(iii) any proposed sale of an REO Property (other than in connection with the termination of the Trust Fund) for less than the related Purchase Price;
(iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property;
(v) any release of collateral, or acceptance of substitute or additional collateral, for a Mortgage Loan unless required by the related Mortgage Loan documents and/or applicable law;
(vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance" clause; provided, further, that, and
(vii) any acceptance of an assumption agreement releasing a Mortgagor from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the event terms of the applicable Mortgage Loan Documents); provided that the Special Servicer or Master Servicer, as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent foregoing rights of the Controlling Class Representative prior shall not relate to the occurrence ShopKo Portfolio Mortgage Loan or any related REO Property, regarding which rights and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests powers of the Certificateholders and, with respect to any Serviced Whole Loan (if specified Persons set forth under Section 6.12 are instead applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions (other than with respect to a Mortgage the ShopKo Portfolio Loan Combination or Serviced Whole Loan, as applicable, any related REO Property) as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding in this Agreement; provided that, notwithstanding anything herein to the contrary, contrary no such direction, and no objection contemplated by the preceding paragraph or this paragraphSection 3.19(e), may (and the Master Servicer or Special Servicer, as applicable, shall disregard any such direction or objection that would) require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender provision of this Agreement or any intercreditor agreement, this Agreement Mortgage Loan or the REMIC Provisions, including without limitation each of the Master Servicer’s and the 's or Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s 's or the Special Servicer’s 's responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer, as the case may be, is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer shall disregard any direction or objection of any party (including, without limitation, of the Controlling Class Representative) if such direction and/or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or any Mortgage Loan or the REMIC Provisions or expose the Master Servicer, the 209 Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer's or Special Servicer's responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests interest of the Certificateholders and/or or is inconsistent with the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Servicing Standard.
(b) The Controlling Class Representative or is hereby authorized to exercise the rights and powers of the holder of the Mortgage Note for the ShopKo Portfolio Mortgage Loan, under Sections 3.02 and 4.03 of the ShopKo Portfolio Co-Lender Agreement (and any advice from corresponding provisions hereof), including for purposes of exercising, together with the ShopKo Portfolio Non-Trust Loan Noteholders, consent rights, consultation rights and rights to direct servicing of the ShopKo Portfolio Loan Combination. Promptly following the initial such appointment of a Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms and any subsequent such appointment of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the a successor Controlling Class Representative, the Trustee and, for posting shall inform the ShopKo Portfolio Non-Trust Loan Noteholders (and from time to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of time shall ensure that such parties remain similarly informed) that the Controlling Class Representative that does not violate any law or is entitled, to the Servicing Standard or any other provisions of this full extent permitted under the related Co-Lender Agreement, any to exercise such rights and powers of the holder of the Mortgage Note for the ShopKo Portfolio Mortgage Loan, under Sections 3.02 and 4.03 of the related Co-Lender Agreement or (and any intercreditor agreement will not result corresponding provisions hereof), and, further, the Trustee shall take such other actions as may be required under the related Co-Lender Agreement in any liability on order to permit the part of the Master Servicer or the Special ServicerControlling Class Representative to exercise such rights and powers. The Controlling Class Representative shall be subject to the same limitations, constraints and restrictions in exercising such rights and powers as would be applicable to the Trustee, in its capacity as holder of the Mortgage Note for the ShopKo Portfolio Mortgage Loan.
(c) The Controlling Class Representative will not have no any liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for error errors in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) confirms its understanding that the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes Classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement Certificates over other Classes of the Certificates, and that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may act solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class of Certificates, that such Non-Serviced Whole Loan the Controlling HolderClass Representative does not have any duties to the Holders of any Class of Certificates other than the Controlling Class of Certificates, shall that the Controlling Class Representative will not be liable deemed to any Certificateholderhave been negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance, by reason of its having acted solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class of Certificates, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall Class Representative will not have no any liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv210
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2006-C4)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the The Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent following actions of the Special Servicer for a Major DecisionServicer, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, contrary except as necessary or advisable to avoid an Adverse REMIC Event and except as set forth in, and in any event subject to Section 6.09(b) and to, the second and third paragraphs paragraph of this Section 6.09(a)6.11, both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days of being notified thereof, which notification with respect to the action described in clause (or in the case of a determination of an Acceptable Insurance Default, twenty (20vi) days) after receipt of the written recommendation and analysis from below shall be copied by the Special Servicer; Servicer to the Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative Representative's approval will be deemed to have approved such action; been given), provided, furtherhowever, that, in the event that the Special Servicer or Master Servicer, as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of if the Controlling Class Representative prior to and the Special Servicer cannot agree on a course of action within 60 days of the occurrence of the event under discussion the Special Servicer shall implement its proposed course of action:
(i) any foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continuance continue in default;
(ii) any modification or waiver (or consent to a modification or waiver by the Master Servicer) of a Control Termination Event in this Agreement, is necessary to protect the interests monetary term of a Mortgage Loan other than a modification consisting of the Certificateholders and, extension of the maturity date of a Mortgage Loan for one year or less;
(iii) any proposed sale of a defaulted Mortgage Loan or REO Property (other than in connection with the termination of the Trust Fund);
(iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property;
(v) any acceptance of substitute or additional collateral for a Mortgage Loan unless required by the underlying loan documents;
(vi) any waiver (or consent to a waiver by the Master Servicer) of a "due-on-sale" clause (except with respect to any Mortgage Loan which is not a Specially Serviced Whole Mortgage Loan and has a then Stated Principal Balance less than $2,500,000) or "due-on-encumbrance" clause; and
(vii) any acceptance of an assumption agreement releasing a borrower from liability under a Mortgage Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only except with respect to any Mortgage Loan which is not a non-Specially Serviced LoanMortgage Loan and has a then Stated Principal Balance less than $2,500,000)) response. The If the Special Servicer is not required to obtain the consent Controlling Class Representative's approval to the waiver of the Controlling Class Representative for any Major Decision following the occurrence "due-on-sale" clause and/or assumption agreement under clauses (vi) and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event(vii) above, the Special Servicer shall consult with nonetheless promptly provide written notice to the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicerwaiver or agreement. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding ; provided that notwithstanding anything herein to the contrary, contrary no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s 's responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special ServicerCertificateholders. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for error errors in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) confirms its understanding that the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes Classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement Certificates over other Classes of the Certificates, and that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may act solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, that such Non-Serviced Whole Loan the Controlling HolderClass Representative does not have any duties to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class Representative shall not be liable deemed to any Certificateholderhave been negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance, by reason of its having acted solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Union Com Mor Sec Inc Com Mor Pass THR Cer Ser 2001-C1)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the The Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loansthe following actions of the Special Servicer, (2) advise and the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected approved such action in writing within ten (10) five Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection notice has not been received by the Special Servicer within such ten (10) five Business Day period or twenty (20) day period, as applicableDays, then the Controlling Class Representative Representative's approval will be deemed to have approved such action; provided, further, that, in the event that the Special Servicer been given):
(i) any foreclosure upon or Master Servicer, as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent comparable conversion (which may include acquisitions of an REO Property) of the Controlling Class Representative prior to ownership of properties securing such of the occurrence Specially Serviced Mortgage Loans as come into and continuance continue in default;
(ii) any modification of a Control Termination Event in this Agreement, is necessary to protect the interests monetary term of a Mortgage Loan other than a modification consisting of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case extension of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance maturity date of a Control Termination Event; provided that, after the occurrence and during the continuance Mortgage Loan for one year or less;
(iii) any proposed sale of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative defaulted Mortgage Loan or REO Property (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor other than in connection with the termination of the Trust Fund);
(iv) any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only determination to the extent such consultation with, bring an REO Property into compliance with applicable environmental laws;
(v) any acceptance of substitute or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance additional collateral for a Mortgage Loan;
(vi) any waiver of such Control Termination Eventa "due-on-sale" or "due-on-encumbrance" clause; provided that such consultation is not binding on the Special Servicerand
(vii) any acceptance of an assumption agreement releasing a borrower from liability under a Mortgage Loan. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, ; provided that no such direction, and no objection contemplated by the preceding paragraph direction or approval rights provided in this paragraph, Section 6.11 may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, Standards or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s 's responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special ServicerCertificateholders. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for error errors in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges confirms its understanding that the Controlling Class Representative may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and agrees that: (i) that the Controlling Class Representative may have special relationships and interests that conflict with those of Holders holders of one or more some Classes of Certificates; (ii) the Controlling Class Representative may act solely in Certificates and, absent willful misfeasance, bad faith or negligence on the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders part of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have Representative, agrees to take no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees employees, principals or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in as a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase result of such Certificate (a special relationship or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Servconflict.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
The Controlling Class Representative. (a) Other than with respect Subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the following actions of the Special Servicer with respect to non-Specially Serviced the Trust Mortgage Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent and any REO Properties (exclusive of the Special Servicer for a Major DecisionGreat Mall Trust Mortgage Loan or any related REO Property), and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, contrary except as necessary or advisable to avoid an Adverse REMIC Event and except as set forth in, and in any event subject to to, Section 6.09(b) and the second and third paragraphs of this Section 6.09(a6.11(b), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take (or permit the Master Servicer to take) any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) Trust Mortgage Loans and any REO Properties (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right exclusive of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 Great Mall Trust Mortgage Loan or Section 3.24any related REO Property) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days of being notified in writing thereof, which notification with respect to the action described in clauses (or in the case of a determination of an Acceptable Insurance Default, twenty vi) and (20viii) days) after receipt of the written recommendation and analysis from below shall be copied by the Special Servicer; Servicer to the Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period period, then the Controlling Class Representative's approval will be deemed to have been given):
(i) any foreclosure upon or twenty comparable conversion (20which may include acquisitions of an REO Property) day periodof the ownership of properties securing such of the Trust Specially Serviced Mortgage Loans as come into and continue in default;
(ii) any modification or consent to a modification of a material term of a Trust Mortgage Loan (excluding the waiver of any due-on-sale or due-on-encumbrance clause, as set forth in clause (vii) below), including the timing of payments or a modification consisting of the extension of the maturity date of a Trust Mortgage Loan;
(iii) any proposed sale of any Trust Defaulted Mortgage Loan or any REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18) for less than the Purchase Price of the subject Trust Defaulted Mortgage Loan or related Trust REO Loan, as applicable;
(iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property;
(v) any release of material real property collateral for any Trust Mortgage Loan, then other than (A) where the release is not conditioned upon obtaining the consent of the lender or (B) upon satisfaction of that Trust Mortgage Loan;
(vi) any acceptance of substitute or additional real property collateral for any Trust Mortgage Loan (except where the acceptance of the substitute or additional collateral is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative will be deemed required);
(vii) any waiver of a due-on-sale or due-on-encumbrance clause in any Trust Mortgage Loan;
(viii) any releases of earn-out reserves or related letters of credit with respect to have approved a Mortgaged Property securing a Trust Mortgage Loan (other than where the release is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative will be required);
(ix) any termination or replacement, or consent to the termination or replacement, of a property manager with respect to any Mortgaged Property or any termination or change, or consent to the termination or change, of the franchise for any Mortgaged Property operated as a hospitality property (other than where the action is not conditioned upon obtaining the consent of the lender, in which case only prior notice to the Controlling Class Representative will be required);
(x) any determination that an insurance-related default in respect of a Trust Mortgage Loan is an Acceptable Insurance Default or that earthquake or terrorism insurance is not available at commercially reasonable rates; and
(xi) any waiver of insurance required under the related Mortgage Loan Documents for a Trust Mortgage Loan (except as contemplated in clause (x) above); provided that, with respect to any Trust Mortgage Loan (other than a Trust Specially Serviced Mortgage Loan), the ten Business Days within which the Controlling Class Representative must object to any such actionaction shall not exceed by more than five Business Days the ten Business Day period the Special Servicer has to object to the Master Servicer taking such action as set forth in Sections 3.02, 3.08 and 3.20; and provided, further, that, in the event that the Special Servicer or Master Servicer, as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent foregoing rights of the Controlling Class Representative prior shall not apply to the occurrence Great Mall Trust Mortgage Loan or any related REO Property, in which case the rights and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests powers of the Certificateholders and, with respect to any Serviced Whole Loan (if specified Persons set forth under Section 6.12 are instead applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, any such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. .
(b) Notwithstanding anything herein to the contrary, no such directionadvice, and no direction or objection given or made, or consent withheld, by the Controlling Class Representative, contemplated by the preceding paragraph Section 6.11(a) or any other section of this paragraphAgreement, may (i) require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, the terms of any related Co-Lender Agreement or Trust Mortgage Loan, any intercreditor agreement, provision of this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the Master Servicer’s and the Special Servicer’s 's obligation to act in accordance with the Servicing StandardStandard or the Mortgage Loan Documents for any Trust Mortgage Loan, (ii) result in an Adverse REMIC Event with respect to REMIC I or REMIC II or otherwise violate the REMIC Provisions or have adverse tax consequences for the Trust Fund, (iii) expose the Depositor, the Master Servicer, the Special Servicer, the Certificate AdministratorTrust Fund, the Trust Trustee or the Trustee any of their respective Affiliates, directors, officers, employees or agents, to any material claim, suit or liability, or (iv) materially expand the scope of the Master Servicer’s 's or the Special Servicer’s 's responsibilities hereunder or (v) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, violates the Servicing Standard, the . The Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent any action, direction or advise and notify in writing objection on the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval part of the Controlling Class Representative that does would have any of the effects described in clauses (i) through (v) of the prior sentence. The Special Servicer shall not violate be obligated to seek approval from the Controlling Class Representative under Section 6.11(a) for any law actions to be taken by the Special Servicer with respect to any particular Trust Specially Serviced Mortgage Loan if (i) the Special Servicer has, as set forth in the first paragraph of Section 6.11(a), notified the Controlling Class Representative in writing of various actions that the Special Servicer proposes to take with respect to the work-out or liquidation of that Trust Mortgage Loan and (ii) for 60 days following the first such notice, the Controlling Class Representative has objected to all of the proposed actions and has failed to suggest any alternative actions that the Special Servicer considers to be consistent with the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. Standard.
(c) The Controlling Class Representative will have no duty or liability to the Trust Fund or Certificateholders (other than the Certificateholders Controlling Class) for any action taken, or for refraining from the taking of any action, action pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees confirms its understanding that any such Non-Serviced Whole Loan the Controlling Holder, with respect to the related Non-Serviced Whole Loan, Class Representative may take actions that favor the interests of one or more classes Classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement Certificates over other Classes of the Certificates, and that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may act solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, that such Non-Serviced Whole Loan the Controlling HolderClass Representative does not have any duties to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class Representative shall not be liable to any Certificateholder, have no liability by reason of its having acted solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so actedClass, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc Trust 2004-Mkb1)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for For so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) if a Special Servicing Loan Event occurs, advise the Special Servicer with respect to all Specially Serviced Loans, and (2) if a Special Servicing Loan Event has not occurred, advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b6.5(b) and the second and third paragraphs of this Section 6.09(a6.5(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, provided further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan)Certificateholders, the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating AdvisorRepresentative, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage the Trust Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may reasonably deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage the Loan Documents, applicable law, any related the Co-Lender Agreement (including Section 5(d) of the Co-Lender Agreement regarding certain consultation with the Companion Loan Holders), applicable law or any intercreditor agreement, this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Accepted Servicing StandardPractices, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan HoldersCertificateholders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage the Loan Documents, the intercreditor agreement, applicable law, the provisions of the Code resulting in an Adverse REMIC Provisions Event or this Agreement, including without limitation, the Accepted Servicing StandardPractices, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 10.17 of this Agreement, the Rule 17g-5 Information Provider Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Accepted Servicing Standard Practices or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will shall have no liability to the Trust Fund Fund, the Certificateholders or the Certificateholders Companion Loan Holders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Servicer and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Control Eligible Certificate. In addition, upon the request of the Servicer, the Special Servicer or the Trustee, as applicable, the Certificate Administrator shall provide (on a reasonably prompt basis) the identity of the then current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement, or otherwise at the expense of the requesting party and each of the Servicer, the Special Servicer and the Trustee shall be entitled to rely on such information so provided by the Certificate Administrator. In the event of a change in the Controlling Class, the Certificate Administrator shall promptly contact Prima Capital Advisors LLC or, if applicable, any successor Controlling Class Representative or Controlling Class Certificateholder(s), and determine whether such entity is the Holder (or Beneficial Owner) of at least a majority of the Controlling Class (in effect after such change in Controlling Class) by Certificate Balance. If at any time that Prima Capital Advisors LLC or any successor Controlling Class Representative or Controlling Class Certificateholder(s) is no longer the Holder (or Beneficial Owner) of at least a majority of the Controlling Class by Certificate Balance and the Certificate Registrar has neither (i) received notice of the then current Controlling Class Certificateholders of at least a majority of the Controlling Class by Certificate Balance nor (ii) received notice of a replacement Controlling Class Representative pursuant to this Agreement, then a Control Termination Event and a Consultation Termination Event shall be deemed to have occurred and shall be deemed to continue until such time as the Certificate Administrator receives either such notice. Upon receipt of notice of a change in Controlling Class Representative, the Certificate Administrator shall promptly forward notice thereof to each other party to this Agreement.
(d) If at any time a book entry certificate belongs to the Controlling Class, the Certificate Administrator shall contact the related Beneficial Owner or Beneficial Owners (through the Depository, unless the Certificate Administrator shall have been previously provided with the name and address of such Beneficial Owner or Beneficial Owners) and shall request that it be informed of any change in the identity of the related Beneficial Owner from time to time.
(e) Until it receives notice to the contrary, each of the Servicer, the Special Servicer the Depositor and the Trustee and the Certificate Administrator shall be entitled to rely on the most recent notification with respect to the identity of the Certificateholders of the Controlling Class and the Controlling Class Representative.
Appears in 1 contract
Sources: Trust and Servicing Agreement (GS Mortgage Securities Trust 2015-Gs1)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the The Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loansthe following actions of the Special Servicer, (2) advise and the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected approved such action in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection notice has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicableDays, then the Controlling Class Representative Representative's approval will be deemed to have approved such action; provided, further, that, in the event that the Special Servicer been given):
(i) any foreclosure upon or Master Servicer, as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent comparable conversion (which may include acquisitions of an REO Property) of the Controlling Class Representative prior to ownership of properties securing such of the occurrence Specially Serviced Mortgage Loans as come into and continuance continue in default;
(ii) any modification of a Control Termination Event in this Agreement, is necessary to protect the interests monetary term of a Mortgage Loan other than a modification consisting of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case extension of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance maturity date of a Control Termination Event; provided that, after the occurrence and during the continuance Mortgage Loan for one year or less;
(iii) any proposed sale of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative defaulted Mortgage Loan or REO Property (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor other than in connection with the termination of the Trust Fund);
(iv) any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only determination to the extent such consultation with, bring an REO Property into compliance with applicable environmental laws;
(v) any acceptance of substitute or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance additional collateral for a Mortgage Loan;
(vi) any waiver of such Control Termination Eventa "due-on-sale" or "due-on-encumbrance" clause; provided that such consultation is not binding on the Special Servicerand
(vii) any acceptance of an assumption agreement releasing a borrower from liability under a Mortgage Loan. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, ; provided that no such direction, and no objection contemplated by the preceding paragraph direction or approval rights provided in this paragraph, Section 6.11 may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, Standard or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s 's responsibilities hereunder or cause the Master Servicer or hereunder. Any reasonable out-of-pocket expenses incurred by the Special Servicer to act, or fail to act, in a manner which in connection with its obtaining the reasonable judgment approval of the Master Servicer or Controlling Class Representative shall be treated as a Servicing Advance and the Special Servicer is not shall be entitled to reimbursement in the best interests of the Certificateholders and/or the Serviced Companion Loan Holdersrespect thereof pursuant to Section 3.05(a). In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative any direction or any advice from objection of the Controlling Class Representative would otherwise cause the Special Servicer or to violate this Agreement, expose the Master Servicer, as applicable, to violate the terms of any Mortgage Loan DocumentsSpecial Servicer, the intercreditor agreement, applicable law, Trust Fund or Trustee to liability or materially expand the REMIC Provisions or this Agreement, including without limitation, scope of the Servicing StandardSpecial Servicer's responsibilities, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval sole remedy of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part shall be to seek removal of the Master Special Servicer or and the Special ServicerServicer shall have no other liability with respect to such action. Any such removal shall be deemed a removal of the Special Servicer without cause. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for error errors in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that which would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of duties or by reason of negligent reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges confirms its understanding that the Controlling Class Representative may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and agrees that: (i) that the Controlling Class Representative may have special relationships and interests that conflict with those of Holders holders of one or more some Classes of Certificates; (ii) the Controlling Class Representative may act solely in Certificates and, absent willful misfeasance, bad faith or gross negligence on the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders part of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have Representative, agrees to take no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees employees, principals or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in as a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase result of such Certificate (a special relationship or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Servconflict.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
The Controlling Class Representative. (a) Other than with respect Subject to Section 6.11(b) and the rights of any Loan Combination Controlling Party pursuant to the C▇▇▇▇▇▇ River Plaza North Whole related Loan prior Combination Co-Lender Agreement to any Whole Loan Control Appraisal Event direct and advise the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSpecial Servicer, the Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the following actions of the Special Servicer with respect to non-Specially the Serviced Trust Mortgage Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decisionand any Administered REO Properties, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as necessary or advisable to avoid an Adverse REMIC Event and except as set forth in, and in any event subject to to, Section 6.09(b) and the second and third paragraphs of this Section 6.09(a6.11(b), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take (or permit the applicable Master Servicer to take) any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze Serviced Trust Mortgage Loans and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision Administered REO Properties as to which the Controlling Class Representative has objected in writing within ten (10) 10 Business Days of being notified in writing thereof, which notification with respect to the action described in clauses (or in the case of a determination of an Acceptable Insurance Default, twenty vi) and (20viii) days) after receipt of the written recommendation and analysis from below shall be copied by the Special Servicer; Servicer to the applicable Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten (10) 10 Business Day period period, then the Controlling Class Representative's approval will be deemed to have been given):
(i) any foreclosure upon or twenty comparable conversion (20which may include acquisitions of an Administered REO Property) day periodof the ownership of properties securing such of the Trust Specially Serviced Mortgage Loans as come or have come into and continue in default;
(ii) any modification or consent to a modification of a material term of a Serviced Trust Mortgage Loan (excluding the waiver of any due-on-sale or due-on-encumbrance clause, as set forth in clause (vii) below), including the timing of payments or a modification consisting of the extension of the maturity date of a Serviced Trust Mortgage Loan;
(iii) any proposed sale of any Serviced Trust Defaulted Mortgage Loan or any Administered REO Property (other than in connection with the termination of the Trust Fund or, in the case of a Serviced Trust Defaulted Mortgage Loan, pursuant to Section 3.18) for less than the Purchase Price of the subject Trust Defaulted Mortgage Loan or related Trust REO Loan, as applicable;
(iv) any determination to bring an Administered REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an Administered REO Property;
(v) any release of material real property collateral for any Serviced Trust Mortgage Loan, then other than (A) where the release is not conditioned upon obtaining the consent of the lender or certain specified conditions being satisfied, (B) upon satisfaction of that Serviced Trust Mortgage Loan, (C) in connection with a pending or threatened condemnation action or (D) in connection with a full or partial defeasance of that Serviced Trust Mortgage Loan;
(vi) any acceptance of substitute or additional real property collateral for any Serviced Trust Mortgage Loan (except where the acceptance of the substitute or additional collateral is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative will be deemed to have approved such action; provided, further, that, required);
(vii) any waiver of a due-on-sale or due-on-encumbrance clause in the event that the Special Servicer any Serviced Trust Mortgage Loan;
(viii) any releases of earn-out reserves or Master Servicer, as applicable, determines that immediate action, related letters of credit with respect to a Major Decision, or any Mortgaged Property securing a Trust Mortgage Loan (other matter requiring than where the release is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative prior will be required);
(ix) any termination or replacement, or consent to the occurrence and continuance termination or replacement, of a Control Termination Event in this Agreementproperty manager with respect to any Serviced Mortgaged Property or any termination or change, is necessary or consent to protect the interests termination or change, of the Certificateholders franchise for any Serviced Mortgaged Property operated as a hospitality property (other than where the action is not conditioned upon obtaining the consent of the lender, in which case only prior notice to the Controlling Class Representative will be required);
(x) any determination that an insurance-related default in respect of a Serviced Trust Mortgage Loan is an Acceptable Insurance Default or that earthquake or terrorism insurance is not available at commercially reasonable rates; and
(xi) any waiver of insurance required under the related Mortgage Loan documents for a Serviced Trust Mortgage Loan (except as contemplated in clause (x) above); provided that, with respect to any Serviced Whole Trust Mortgage Loan (if applicable), the related other than a Trust Specially Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Mortgage Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of 10 Business Days within which the Controlling Class Representative for must object to any Major Decision following such action shall not exceed by more than five (5) Business Days the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, 10-Business Day period the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only has to object to the extent applicable Master Servicer taking such consultation withaction as set forth in Sections 3.02, or consent of, the Controlling Class Representative would have been required prior to the occurrence 3.08 and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer3.20. In addition, other than with respect subject to Section 6.11(b) and the rights of any Loan Combination Controlling Party pursuant to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior related Loan Combination Co-Lender Agreement to any Whole Loan Control Appraisal Event, direct and advise the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSpecial Servicer, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, any such other actions with respect to a Specially Serviced Mortgage Loan or Serviced Whole Loan, as applicable, Loans and Administered REO Properties as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding the foregoing paragraphs, in the case of a Serviced Loan Combination, consent and direction rights of the type contemplated above shall be exercised only by the related Loan Combination Controlling Party and only as and to the extent provided in the related Loan Combination Co-Lender Agreement. If and to the extent that a Serviced Loan Combination Change of Control Event exists with respect to any Serviced Loan Combination, then the Controlling Class Representative is hereby designated as the related Loan Combination Controlling Party. If the Controlling Class Representative is the Loan Combination Controlling Party for any Serviced Loan Combination, then it shall be entitled to, and the parties shall take such actions as are necessary and appropriate (consistent with the related Loan Combination Co-Lender Agreement) to allow the Controlling Class Representative to, exercise such consent and direction rights in accordance with the related Loan Combination Co-Lender Agreement.
(b) Notwithstanding anything herein to the contrary, no such directionadvice, and no direction or objection given or made, or consent withheld, by the Controlling Class Representative, contemplated by the preceding paragraph Section 6.11(a) or any other section of this paragraphAgreement, may (i) require or cause the applicable Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, the terms of any Serviced Trust Mortgage Loan or any related Co-Lender Agreement or any intercreditor agreement, any provision of this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the such Master Servicer’s and 's or the Special Servicer’s 's obligation to act in accordance with the Servicing StandardStandard or the Mortgage Loan documents for any Serviced Trust Mortgage Loan, (ii) result in an Adverse REMIC Event with respect to any REMIC Pool or otherwise violate the REMIC Provisions or result in an Adverse Grantor Trust Event or result in an adverse tax consequence for the Trust Fund, (iii) expose the Depositor, the applicable Master Servicer, the Special Servicer, the Trust Fund, the Trustee, the Certificate Administrator, the Trust Custodian, any Fiscal Agent or the Trustee any of their respective Affiliates, directors, officers, employees or agents, to liabilityany claim, suit or liability to which they would not otherwise be subject absent such advice, direction or objection or consent withheld, (iv) materially expand the scope of the applicable Master Servicer’s 's or the Special Servicer’s 's responsibilities hereunder or (v) cause the applicable Master Servicer or the Special Servicer to act, or fail to act, in a manner which in violates the reasonable judgment Servicing Standard. The applicable Master Servicer and the Special Servicer shall disregard any action, direction or objection on the part of the Controlling Class Representative that would have any of the effects described in clauses (i) through (v) of the prior sentence. In addition, if the applicable Master Servicer or the Special Servicer determines that immediate action is not in necessary to protect the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer(as a collective whole), as applicable, determines that it may take such action without waiting for a refusal to consent by response from the Controlling Class Representative or any advice Representative. The Special Servicer shall not be obligated to seek approval from the Controlling Class Representative would otherwise cause under Section 6.11(a) for any actions to be taken by the Special Servicer or Master Servicer, as applicable, with respect to violate the terms of any particular Trust Specially Serviced Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, if (i) the Special Servicer or Master Servicerhas, as applicableset forth in the first paragraph of Section 6.11(a), shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of notified the Controlling Class Representative in writing of various actions that does not violate the Special Servicer proposes to take with respect to the work-out or liquidation of that Trust Specially Serviced Mortgage Loan and (ii) for 60 days following the first such notice, the Controlling Class Representative has objected to all of the proposed actions and has failed to suggest any law or alternative actions that the Special Servicer considers to be consistent with the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. Standard.
(c) The Controlling Class Representative will have no duty or liability to the Trust Fund or Certificateholders (other than the Certificateholders Controlling Class) for any action taken, or for refraining from the taking of any action, action pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees confirms its understanding that any such Non-Serviced Whole Loan the Controlling Holder, with respect to the related Non-Serviced Whole Loan, Class Representative may take actions that favor the interests of one or more classes Classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement Certificates over other Classes of the Certificates, and that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may act solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, that such Non-Serviced Whole Loan the Controlling HolderClass Representative does not have any duties to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class Representative shall not be liable to any Certificateholder, have no liability by reason of its having acted solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so actedClass, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative or any director, officer, employee, agent or principal thereof for having so acted.
(bd) Notwithstanding anything Any right to the contrary contained herein: (i) take action, grant or withhold any consent or otherwise exercise any right, election or remedy afforded the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to under this AgreementAgreement may, after the occurrence and during the continuance of a Control Termination Event but prior unless otherwise expressly provided herein to the occurrence and continuance of a Consultation Termination Eventcontrary, be affirmatively waived by the Controlling Class Representative shall remain entitled by written notice given to receive any notices, reports the Trustee or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and as applicable. Upon delivery of any other applicable party shall consult with such notice of waiver given by the Controlling Class Representative, any time period (exclusive or otherwise) afforded the Controlling Class Representative in connection with to exercise any action such right, make any such election or grant or withhold any such consent shall thereupon be deemed to be taken or refrained from taking to the extent it would have been required to obtain the consent expired. Any waiver of the Controlling Class Representative but for the occurrence of rights by a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holderset forth above, the shall not be binding any subsequent Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing HolderRepresentative.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 1 contract
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for For so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major DecisionServicer, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings meeting with an the Other Master Servicer and an the Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, provided further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan HoldersCertificateholders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, that the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so actedintercreditor agreement.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Master Servicer, the Operating Advisor and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Control Eligible Certificate. In addition, upon the request of the Master Servicer, the Special Servicer, the Operating Advisor or the Trustee, as applicable, the Certificate Administrator shall provide (on a reasonably prompt basis) the identity of the then-current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement, and otherwise at the expense of the requesting party) of the Controlling Class to such requesting party. In the event of a change in the Controlling Class, the Certificate Administrator shall promptly contact ▇▇▇▇▇▇▇▇▇ Management Group, LLC or one of its Affiliates, or, if applicable, any successor Controlling Class Representative or Controlling Class Certificateholder(s), and determine whether such entity is the Holder (or Beneficial Owner) of at least a majority of the Controlling Class (in effect after such change in Controlling Class) by Certificate Principal Amount. If at any time that ▇▇▇▇▇▇▇▇▇ Management Group, LLC or one of its Affiliates, or any successor Controlling Class Representative or Controlling Class Certificateholder(s) is no longer the Holder (or Beneficial Owner) of at least a majority of the Controlling Class by Certificate Principal Amount and the Certificate Administrator has neither (i) received notice of the then-current Controlling Class Certificateholders of at least a majority of the Controlling Class by Certificate Principal Amount nor (ii) received notice of a replacement Controlling Class Representative pursuant to this Agreement, then a Control Termination Event and a Consultation Termination Event shall be deemed to have occurred and shall be deemed to continue until such time as the Certificate Administrator receives either such notice. Upon receipt of notice of a change in Controlling Class Representative, the Certificate Administrator shall promptly forward notice thereof to each other party to this Agreement.
(d) Once a Controlling Class Representative has been selected pursuant to clause (c) above, each of the Master Servicer, the Special Servicer, the Operating Advisor, the Depositor, the Certificate Administrator, the Trustee and each other Certificateholder (or Beneficial Owner, if applicable) shall be entitled to rely on such selection unless a majority of the Certificateholders of the Controlling Class, by Certificate Principal Amount, or such Controlling Class Representative shall have notified the Certificate Administrator, the Master Servicer and each other Certificateholder of the Controlling Class, in writing, of the resignation of such Controlling Class Representative or the selection of a new Controlling Class Representative. Upon receipt of written notice of, or other knowledge of, the resignation of a Controlling Class Representative, the Certificate Administrator shall request the Certificateholders of the Controlling Class to select a new Controlling Class Representative.
(e) If at any time a book-entry certificate belongs to the Controlling Class, the Certificate Administrator shall notify the related Beneficial Owner or Beneficial Owners (through the Depository, unless the Certificate Administrator shall have been previously provided with the name and address of such Beneficial Owner or Beneficial Owners) of such event and shall request that it be informed of any change in the identity of the related Beneficial Owner from time to time.
(f) Until it receives notice to the contrary, each of the Master Servicer, the Special Servicer, the Operating Advisor, the Depositor and the Trustee and the Certificate Administrator shall be entitled to rely on the most recent notification with respect to the identity of the Certificateholders of the Controlling Class and the Controlling Class Representative.
(g) Notwithstanding anything to the contrary contained herein, during such time as the Class F Certificates is the Controlling Class, the Holder of more than 50% of the Controlling Class Certificates (by Certificate Principal Amount) may waive its right to act as or appoint a Controlling Class Representative and to exercise any of the rights of the Controlling Class Representative or to cause the exercise of the rights of the Controlling Class Representative as set forth in this Agreement by irrevocable written notice delivered to the Depositor, Certificate Administrator, Trustee, Master Servicer, Special Servicer and Operating Advisor (any such Holder or group of affiliated Holders that makes such an election, the “Opting-Out Party”). Any such waiver shall remain effective, and a Control Termination Event and a Consultation Termination Event shall be deemed to have occurred and shall be deemed to continue, with respect to such Holder and such Class until such time as the Opting-Out Party (i) sells a majority of the Class F Certificates (by Certificate Principal Amount) to an unaffiliated third party and (ii) certifies to the Depositor, Certificate Administrator, Trustee, Master Servicer, Special Servicer and Operating Advisor that (a) the Opting-Out Party retains no direct or indirect voting rights with respect to the Class F Certificates that it does not own, (b) there is no voting ag
Appears in 1 contract
Sources: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2013-Gcj14)
The Controlling Class Representative. (a) Other than with respect Subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the following actions of the Special Servicer with respect to non-Specially Serviced the Trust Mortgage Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent and any REO Properties (exclusive of the Special Servicer for a Major DecisionWestchester Trust Mortgage Loan or any related REO Property), and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, contrary except as necessary or advisable to avoid an Adverse REMIC Event and except as set forth in, and in any event subject to to, Section 6.09(b) and the second and third paragraphs of this Section 6.09(a6.11(b), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take (or permit the Master Servicer to take) any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) Trust Mortgage Loans and any REO Properties (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right exclusive of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 Westchester Trust Mortgage Loan or Section 3.24any related REO Property) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) 10 Business Days of being notified in writing thereof, which notification with respect to the action described in clauses (or in the case of a determination of an Acceptable Insurance Default, twenty vi) and (20viii) days) after receipt of the written recommendation and analysis from below shall be copied by the Special Servicer; Servicer to the Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten (10) 10 Business Day period period, then the Controlling Class Representative's approval will be deemed to have been given):
(i) any foreclosure upon or twenty comparable conversion (20which may include acquisitions of an REO Property) day periodof the ownership of properties securing such of the Trust Specially Serviced Mortgage Loans as come or have come into and continue in default;
(ii) any modification or consent to a modification of a material term of a Trust Mortgage Loan (excluding the waiver of any due-on-sale or due-on-encumbrance clause, as set forth in clause (vii) below), including the timing of payments or a modification consisting of the extension of the maturity date of a Trust Mortgage Loan;
(iii) any proposed sale of any Trust Defaulted Mortgage Loan or any REO Property (other than in connection with the termination of the Trust Fund or, in the case of a Trust Defaulted Mortgage Loan, pursuant to Section 3.18) for less than the Purchase Price of the subject Trust Defaulted Mortgage Loan or related Trust REO Loan, as applicable;
(iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property;
(v) any release of material real property collateral for any Trust Mortgage Loan, then other than (A) where the release is not conditioned upon obtaining the consent of the lender or certain specified conditions being satisfied, (B) upon satisfaction of that Trust Mortgage Loan, (C) in connection with a pending or threatened condemnation action or (D) in connection with a full or partial defeasance of that Trust Mortgage Loan;
(vi) any acceptance of substitute or additional real property collateral for any Trust Mortgage Loan (except where the acceptance of the substitute or additional collateral is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative will be deemed required);
(vii) any waiver of a due-on-sale or due-on-encumbrance clause in any Trust Mortgage Loan;
(viii) any releases of earn-out reserves or related letters of credit with respect to have approved a Mortgaged Property securing a Trust Mortgage Loan (other than where the release is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative will be required);
(ix) any termination or replacement, or consent to the termination or replacement, of a property manager with respect to any Mortgaged Property or any termination or change, or consent to the termination or change, of the franchise for any Mortgaged Property operated as a hospitality property (other than where the action is not conditioned upon obtaining the consent of the lender, in which case only prior notice to the Controlling Class Representative will be required);
(x) any determination that an insurance-related default in respect of a Trust Mortgage Loan is an Acceptable Insurance Default or that earthquake or terrorism insurance is not available at commercially reasonable rates; and
(xi) any waiver of insurance required under the related Mortgage Loan documents for a Trust Mortgage Loan (except as contemplated in clause (x) above); provided that, with respect to any Trust Mortgage Loan (other than a Trust Specially Serviced Mortgage Loan), the 10 Business Days within which the Controlling Class Representative must object to any such actionaction shall not exceed by more than five Business Days the 10 Business Day period the Special Servicer has to object to the Master Servicer taking such action as set forth in Sections 3.02, 3.08 and 3.20; and provided, further, that, in the event that the Special Servicer or Master Servicer, as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent foregoing rights of the Controlling Class Representative prior shall not apply to the occurrence Westchester Trust Mortgage Loan or any related REO Property, in which case the rights and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests powers of the Certificateholders and, with respect to any Serviced Whole Loan (if specified Persons set forth under Section 6.12 are instead applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, any such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. .
(b) Notwithstanding anything herein to the contrary, no such directionadvice, and no direction or objection given or made, or consent withheld, by the Controlling Class Representative, contemplated by the preceding paragraph Section 6.11(a) or any other section of this paragraphAgreement, may (i) require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, the terms of any related Co-Lender Agreement or Trust Mortgage Loan, any intercreditor agreement, provision of this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the Master Servicer’s and the Special Servicer’s 's obligation to act in accordance with the Servicing StandardStandard or the Mortgage Loan documents for any Trust Mortgage Loan, (ii) result in an Adverse REMIC Event with respect to REMIC I or REMIC II or otherwise violate the REMIC Provisions or result in an Adverse Grantor Trust Event or have adverse tax consequences for the Trust Fund, (iii) expose the Depositor, the Master Servicer, the Special Servicer, the Certificate AdministratorTrust Fund, the Trust Trustee, any Fiscal Agent or the Trustee any of their respective Affiliates, directors, officers, employees or agents, to liabilityany claim, suit or liability to which they would not otherwise be subject absent such advice, direction or objection or consent withheld, (iv) materially expand the scope of the Master Servicer’s 's or the Special Servicer’s 's responsibilities hereunder or (v) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in violates the reasonable judgment of the Servicing Standard. The Master Servicer or and the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent any action, direction or advise and notify in writing objection on the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval part of the Controlling Class Representative that does would have any of the effects described in clauses (i) through (v) of the prior sentence. The Special Servicer shall not violate be obligated to seek approval from the Controlling Class Representative under Section 6.11(a) for any law actions to be taken by the Special Servicer with respect to any particular Trust Specially Serviced Mortgage Loan if (i) the Special Servicer has, as set forth in the first paragraph of Section 6.11(a), notified the Controlling Class Representative in writing of various actions that the Special Servicer proposes to take with respect to the work-out or liquidation of that Trust Mortgage Loan and (ii) for 60 days following the first such notice, the Controlling Class Representative has objected to all of the proposed actions and has failed to suggest any alternative actions that the Special Servicer considers to be consistent with the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. Standard.
(c) The Controlling Class Representative will have no duty or liability to the Trust Fund or Certificateholders (other than the Certificateholders Controlling Class) for any action taken, or for refraining from the taking of any action, action pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees confirms its understanding that any such Non-Serviced Whole Loan the Controlling Holder, with respect to the related Non-Serviced Whole Loan, Class Representative may take actions that favor the interests of one or more classes Classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement Certificates over other Classes of the Certificates, and that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may act solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, that such Non-Serviced Whole Loan the Controlling HolderClass Representative does not have any duties to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class Representative shall not be liable to any Certificateholder, have no liability by reason of its having acted solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so actedClass, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-McP1)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for For so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, and (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major DecisionDecision [, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings meeting with an the Other Master Servicer and an the Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement]. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, provided further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable)Loan, the related Serviced Companion Loan Holder(s) Holder (as a collective whole as if such Certificateholders and, if applicable, the and related Serviced Companion Loan Holder(s) Holder constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced a Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, that the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so actedintercreditor agreement.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Master Servicer and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Control Eligible Certificate. In addition, upon the request of the Master Servicer, the Special Servicer or the Trustee, as applicable, the Certificate Administrator shall provide the identity of the then-current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement, and otherwise at the expense of the requesting party) of the Controlling Class to such requesting party. In the event of a change in the Controlling Class, the Certificate Administrator shall promptly contact [_____] or one of its Affiliates, or, if applicable, any successor Controlling Class Representative or Controlling Class Certificateholder(s), and determine whether such entity is the Holder (or Beneficial Owner) of at least a majority of the Controlling Class (in effect after such change in Controlling Class) by Certificate Principal Balance. If at any time that [_____] or one of its Affiliates, or any successor Controlling Class Certificateholder(s) is no longer the Holder (or Beneficial Owner) of at least a majority of the Controlling Class by Certificate Principal Balance and the Certificate Administrator has neither (i) received notice of the then-current Controlling Class Certificateholders of at least a majority of the Controlling Class by Certificate Principal Balance nor (ii) received notice of a replacement Controlling Class Representative pursuant to this Agreement, then a Control Termination Event and a Consultation Termination Event shall be deemed to have occurred and shall be deemed to continue until such time as the Certificate Administrator receives either such notice. Upon receipt of notice of a change in Controlling Class Representative, the Certificate Administrator shall promptly forward notice thereof to each other party to this Agreement.
(e) Once a Controlling Class Representative has been selected pursuant to clause (c) above, each of the Master Servicer, the Special Servicer, the Operating Advisor, the Depositor, the Certificate Administrator, the Trustee and each other Certificateholder (or Beneficial Owner, if applicable) shall be entitled to rely on such selection unless a majority of the Certificateholders of the Controlling Class, by Certificate Principal Balance, or such Controlling Class Representative shall have notified the Certificate Administrator, the Master Servicer and each other Certificateholder of the Controlling Class, in writing, of the resignation of such Controlling Class Representative or the selection of a new Controlling Class Representative. Upon receipt of written notice of, or other knowledge of, the resignation of a Controlling Class Representative, the Certificate Administrator shall request the Certificateholders of the Controlling Class to select a new Controlling Class Representative.
(f) If at any time a book-entry certificate belongs to the Controlling Class, the Certificate Administrator shall notify the related Beneficial Owner or Beneficial Owners (through the Depository, unless the Certificate Administrator shall have been previously provided with the name and address of such Beneficial Owner or Beneficial Owners) of such event and shall request that it be informed of any change in the identity of the related Beneficial Owner from time to time.
(g) Until it receives notice to the contrary, each of the Master Servicer, the Special Servicer, the Operating Advisor, the Depositor and the Trustee and the Certificate Administrator shall be entitled to rely on the most recent notification with respect to the identity of the Certificateholders of the Controlling Class and the Controlling Class Representative.
(h) Notwithstanding anything to the contrary contained herein, during such time as the Class [E] Certificates is the Controlling Class, the Holder of more than 50% of the Controlling Class Certificates (by Certificate Principal Balance) may waive its right to act as or appoint a Controlling Class Representative and to exercise any of the rights of the Controlling Class Representative or to cause th
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp)
The Controlling Class Representative. (a) Other than with respect to (i) the C▇▇▇▇▇▇ River Plaza North Soho-Tribeca Grand Hotel Portfolio Whole Loan Loan, prior to any Whole Loan Control Appraisal Event and or (ii) the WPC Department Store Portfolio Westfield Wheaton Whole Loan, prior to the WPC Department Store Portfolio Westfield Wheaton Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 30 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 30 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to (i) the C▇▇▇▇▇▇ River Plaza North Soho-Tribeca Grand Hotel Portfolio Whole Loan, prior to any Whole Loan Control Appraisal Event, Event and (ii) the WPC Department Store Portfolio Westfield Wheaton Whole Loan, prior to the WPC Department Store Portfolio Westfield Wheaton Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; and (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Master Servicer, the Operating Advisor and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Control Eligible Certificate. In addition, upon the request (which may be by email) of the Master Servicer, the Special Servicer, the Operating Advisor or the Trustee, as applicable, the Certificate Administrator shall provide (on a reasonably prompt basis) the identity of each Companion Loan Holder, the then-current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement or in connection with a request made by the Operating Advisor in connection with its obligation under Section 3.28(d)(ii) of this Agreement to deliver a copy of the Operating Advisor Annual
Appears in 1 contract
Sources: Pooling and Servicing Agreement (CSAIL 2015-C1 Commercial Mortgage Trust)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for For so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to advise (1) advise the Special Servicer with respect to all Specially Serviced Loans, Mortgage Loans and (2) advise the Special Servicer with respect to non-Specially Serviced Mortgage Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 fifteen (15) Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 fifteen (15) Business Days or 60 days, as applicableDays, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, further, further that, in the event that the Special Servicer or Master ServicerServicer (in the event the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced a Whole Loan (if applicable)Loan, the related Serviced Companion Loan Holder(s) Interest Holder (as a collective whole as if such Certificateholders and, if applicable, the related Serviced and Companion Loan Holder(s) Interest Holder constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced a Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan HoldersCertificateholders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreementIntercreditor Agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 11.14 of this Agreement, the Rule 17g-5 Information Provider Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, that the rights of the Controlling Class Representative are subject to the related Co-Lender Intercreditor Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; and (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Interest Holder or its designee is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 6.10(a) with respect to the AB a Whole Loan or any related REO Property.
(c) Notwithstanding anything to the contrary contained herein, and instead all such rights, in addition to any other rights provided for under so long as the related Co-Lender Agreement, shall be exercised by Companion Interest Holder or its designee is the related Whole Loan Directing Holder; and (v) in , the case Whole Loan Directing Holder shall be entitled to exercise with respect to a Whole Loan or related REO Property all of the WPC Department Store Portfolio Whole Loan, pre-Control Termination Event rights and powers of the Controlling Class Representative will not be entitled to exercise any set forth in Section 6.10(a), as well as all of the rights in this Section 6.09 with respect to and powers of the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for Directing Holder under the related Co-Lender Intercreditor Agreement, shall . The rights of the Companion Interest Holder or its designee as Whole Loan Directing Holder will be exercised unaffected by the related WPC Department Store Portfolio Directing Holdercontinuance of a Control Termination Event or a Consultation Termination Event.
(cd) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall be required to take or refrain from taking any action pursuant to instructions or based upon advice from a the Whole Loan Directing Holder or Companion Loan Interest Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole any Mortgage Loan, the related Co-Lender Intercreditor Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing StandardCertificateholders.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Gs Mortgage Securities Corp Ii)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so So long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) if a Special Servicing Loan Event occurs, advise the Special Servicer with respect to all Specially Serviced Loans, and (2) if a Special Servicing Loan Event has not occurred, advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b6.5(b) and the second and third paragraphs of this Section 6.09(a6.5(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 ten (10) Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 ten (10) Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis and other information reasonably requested by the Controlling Class Representative from the Special Servicer unless such actions are part of an asset status report approved by the Controlling Class Representative (the “Major Decision Reporting Package”), which the Special Servicer will be required to deliver to the Controlling Class Representative within five (5) Business Days of the Special Servicer’s receipt of notice of the proposed action; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a so long as no Control Termination Event is continuing in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan)Certificateholders, the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no unless a Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a the Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may reasonably deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage the Loan Documents, applicable law, any related the Co-Lender Agreement (including the provisions regarding certain consultation rights with the Companion Loan Holders), applicable law or any intercreditor agreement, this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Accepted Servicing Standard, Practices or expose the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests interest of the Certificateholders and/or Certificateholders. With respect to any action requiring the Serviced Companion Loan Holdersconsent of the Controlling Class Representative hereunder, such consent will be deemed given if the Controlling Class Representative does not object within ten (10) Business Days. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage the Loan Documents, the intercreditor agreementIntercreditor Agreement, the provisions of the Code resulting in an Adverse REMIC Event, applicable law, the REMIC Provisions law or this Agreement, including without limitation, the Accepted Servicing StandardPractices, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 10.17 of this Agreement, the Rule 17g-5 Information Provider Rating Agency of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Accepted Servicing Standard Practices or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By Each Certificateholder acknowledges and agrees, by its acceptance of a Certificateits Certificates, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates, including owning certificates backed by the Mezzanine Loan, acting as operating advisor with respect to any mezzanine securitization or owning all or any portion of a Mezzanine Loan; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative. In the event that no Controlling Class Representative has been appointed or identified to the Servicer or the Special Servicer, as applicable, and the Servicer or Special Servicer, as applicable, has attempted to obtain such information from the Certificate Administrator, then, until such time as the new Controlling Class Representative is identified, the Servicer or the Special Servicer, as applicable, shall have no duty to consult with, provide notice to, or seek the approval or consent of any such Controlling Class Representative, as the case may be. After the occurrence and during the continuance of a Control Termination Event but, with respect to the Controlling Class Representative only, prior to the occurrence of a Consultation Termination Event, the Special Servicer shall consult with the Controlling Class Representative in connection with any Major Decision (and any other actions which otherwise require consultation with the Controlling Class Representative prior to a Consultation Termination Event hereunder) and consider alternative actions recommended by Controlling Class Representative in respect thereof. Such consultation will not be binding on the Special Servicer. In the event the Special Servicer receives no response from the Controlling Class Representative within 10 days following its written request for input on any required consultation, the Special Servicer shall not be obligated to consult with the Controlling Class Representative on the specific matter; provided, however, that the failure of the Controlling Class Representative to respond shall not relieve the Special Servicer from consulting with the Controlling Class Representative on any future matters with respect to the Mortgage Loan. The Special Servicer shall provide each Major Decision Reporting Package to the Operating Advisor simultaneously upon providing such Major Decision Reporting Package to the Controlling Class Representative. With respect to any particular Major Decision and related Major Decision Reporting Package and any Asset Status Report, the Special Servicer shall make available to the Operating Advisor Servicing Officers with relevant knowledge regarding the Mortgage Loan and such Major Decision and/or Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Major Decision and/or Asset Status Report and potential conflicts of interest and compensation with respect to such Major Decision and/or Asset Status Report. In addition, after the occurrence and during the continuance of an Operating Advisor Consultation Event, the Special Servicer shall consult with the Operating Advisor (ivtelephonically or electronically) in the case connection with any proposed Major Decision (and such other matters that are subject to consultation rights of the AB Whole Operating Advisor hereunder) and consider alternative actions recommended by the Operating Advisor, in respect thereof, provided that such consultation is on a non-binding basis. In the event that the Special Servicer receives no response from the Operating Advisor within ten (10) Business Days following the later of (i) its written request for input (which initial request will be required to include a Major Decision Reporting Package) on any required consultation and (ii) delivery of all such additional information reasonably requested by the Operating Advisor related to the subject matter of such consultation, the Special Servicer shall not be obligated to consult with the Operating Advisor on the specific matter; provided, however, that the failure of the Operating Advisor to respond on any specific matters shall not relieve the Special Servicer from its obligation to consult with the Operating Advisor on any future matter with respect to the Mortgage Loan. In connection with the Controlling Class Representative’s right to consent or consult or the Operating Advisor’s right to consult with respect to a Major Decision, as applicable, if the Special Servicer determines that action is necessary to protect the Property or the interests of the Certificateholders from potential harm if such action is not taken, or if a failure to take any such action at such time would be inconsistent with Accepted Servicing Practices, the Special Servicer may take actions with respect to the Property before the expiration of the applicable period for so long the Operating Advisor or Controlling Class Representative to respond as described in this section, if the related Subordinate Companion Loan Holder is Special Servicer reasonably determines in accordance with Accepted Servicing Practices that failure to take such actions before the related Whole Loan Directing Holderexpiration of such period would materially adversely affect the interest of the Certificateholders, and the Special Servicer has made a reasonable effort to contact the Operating Advisor or the Controlling Class Representative, as applicable. After the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative will not shall have no consultation or consent rights hereunder and shall have no right to receive any notices, reports or information (other than notices, reports or information required to be entitled delivered to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan all Certificateholders) or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loanas Controlling Class Representative. However, the Controlling Class Representative will not be entitled shall maintain the right to exercise any of its Voting Rights for the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to same purposes as any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing HolderCertificateholder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Class HRR Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator Registrar and to notify the Certificate Administrator Registrar of the transfer of any Control Eligible Class HRR Certificate (or the beneficial ownership of any Control Eligible Class HRR Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Class HRR Certificate (or the beneficial ownership interest in a Control Eligible Class HRR Certificate) to notify in writing the Certificate Administrator Registrar when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. The initial Controlling Class Representative and any subsequent Controlling Class Representative is hereby deemed to have agreed and acknowledged by virtue of its purchase of the Class HRR Certificates (or beneficial ownership interest in such Certificates) that its identity will be reported monthly by the Certificate Registrar in the Distribution Date Statement. Upon receipt of such notice, the Certificate Administrator Registrar shall notify the Special ServServicer, the Servicer, the Operating Advisor and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Class HRR Certificate. In addition, upon the request of the Servicer, the Special Servicer, the Operating Advisor or the Trustee, as applicable, the Certificate Registrar shall provide (on a reasonably prompt basis) the identity of the then current Controlling Class, a
Appears in 1 contract
Sources: Trust and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2021-C61)
The Controlling Class Representative. (a) Other than with respect Subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the following actions of the Special Servicer with respect to non-Specially Serviced the Trust Mortgage Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decisionand any REO Properties, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, contrary except as necessary or advisable to avoid an Adverse REMIC Event and except as set forth in, and in any event subject to to, Section 6.09(b) and the second and third paragraphs of this Section 6.09(a6.11(b), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take (or permit the applicable Master Servicer to take) any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze Trust Mortgage Loans and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision REO Properties as to which the Controlling Class Representative has objected in writing within ten (10) 10 Business Days of being notified in writing thereof, which notification with respect to the action described in clauses (or in the case of a determination of an Acceptable Insurance Default, twenty vi) and (20viii) days) after receipt of the written recommendation and analysis from below shall be copied by the Special Servicer; Servicer to the applicable Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten (10) 10 Business Day period period, then the Controlling Class Representative's approval will be deemed to have been given):
(i) any foreclosure upon or twenty comparable conversion (20which may include acquisitions of an REO Property) day periodof the ownership of properties securing such of the Trust Specially Serviced Mortgage Loans as come or have come into and continue in default;
(ii) any modification or consent to a modification of a material term of a Trust Mortgage Loan (excluding the waiver of any due-on-sale or due-on-encumbrance clause, as set forth in clause (vii) below), including the timing of payments or a modification consisting of the extension of the maturity date of a Trust Mortgage Loan;
(iii) any proposed sale of any Trust Defaulted Mortgage Loan or any REO Property (other than in connection with the termination of the Trust Fund or, in the case of a Trust Defaulted Mortgage Loan, pursuant to Section 3.18) for less than the Purchase Price of the subject Trust Defaulted Mortgage Loan or related Trust REO Loan, as applicable;
(iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property;
(v) any release of material real property collateral for any Trust Mortgage Loan, then other than (A) where the release is not conditioned upon obtaining the consent of the lender or certain specified conditions being satisfied, (B) upon satisfaction of that Trust Mortgage Loan, (C) in connection with a pending or threatened condemnation action or (D) in connection with a full or partial defeasance of that Trust Mortgage Loan;
(vi) any acceptance of substitute or additional real property collateral for any Trust Mortgage Loan (except where the acceptance of the substitute or additional collateral is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative will be deemed to have approved such action; provided, further, that, required);
(vii) any waiver of a due-on-sale or due-on-encumbrance clause in the event that the Special Servicer any Trust Mortgage Loan;
(viii) any releases of earn-out reserves or Master Servicer, as applicable, determines that immediate action, related letters of credit with respect to a Major Decision, or any Mortgaged Property securing a Trust Mortgage Loan (other matter requiring than where the release is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative prior will be required;
(ix) any termination or replacement, or consent to the occurrence and continuance termination or replacement, of a Control Termination Event in this Agreementproperty manager with respect to any Mortgaged Property or any termination or change, is necessary or consent to protect the interests termination or change, of the Certificateholders franchise for any Mortgaged Property operated as a hospitality property (other than where the action is not conditioned upon obtaining the consent of the lender, in which case only prior notice to the Controlling Class Representative will be required);
(x) any determination that an insurance-related default in respect of a Trust Mortgage Loan is an Acceptable Insurance Default or that earthquake or terrorism insurance is not available at commercially reasonable rates; and
(xi) any waiver of insurance required under the related Mortgage Loan documents for a Trust Mortgage Loan (except as contemplated in clause (x) above); provided that, with respect to any Serviced Whole Trust Mortgage Loan (if applicable), the related other than a Trust Specially Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Mortgage Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of 10 Business Days within which the Controlling Class Representative for must object to any Major Decision following such action shall not exceed by more than five Business Days the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, 10 Business Day period the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only has to object to the extent applicable Master Servicer taking such consultation withaction as set forth in Sections 3.02, or consent of, the Controlling Class Representative would have been required prior to the occurrence 3.08 and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer3.20. In addition, other than with respect subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, any such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. .
(b) Notwithstanding anything herein to the contrary, no such directionadvice, and no direction or objection given or made, or consent withheld, by the Controlling Class Representative, contemplated by the preceding paragraph Section 6.11(a) or any other section of this paragraphAgreement, may (i) require or cause the applicable Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, the terms of any related Co-Lender Agreement or Trust Mortgage Loan, any intercreditor agreement, provision of this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the such Master Servicer’s and 's or the Special Servicer’s 's obligation to act in accordance with the Servicing StandardStandard or the Mortgage Loan documents for any Trust Mortgage Loan, (ii) result in an Adverse REMIC Event with respect to REMIC I or REMIC II or otherwise violate the REMIC Provisions or result in an Adverse Grantor Trust Event or result in an adverse tax consequence for the Trust Fund, except that the Controlling Class Representative may advise or direct that the Trust Fund earn "net income from foreclosure property" that is subject to tax with the consent of the Special Servicer, if the Special Servicer determines that the net after-tax benefit to Certificateholders is greater than another method of operating or net-leasing the subject REO Property, (iii) expose the Depositor, the applicable Master Servicer, the Special Servicer, the Certificate AdministratorTrust Fund, the Trust Trustee, any Fiscal Agent or the Trustee any of their respective Affiliates, directors, officers, employees or agents, to liabilityany claim, suit or liability to which they would not otherwise be subject absent such advice, direction or objection or consent withheld, (iv) materially expand the scope of the applicable Master Servicer’s 's or the Special Servicer’s 's responsibilities hereunder or (v) cause the applicable Master Servicer or the Special Servicer to act, or fail to act, in a manner which in violates the reasonable judgment of the Servicing Standard. The applicable Master Servicer or and the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent any action, direction or advise and notify in writing objection on the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval part of the Controlling Class Representative that does would have any of the effects described in clauses (i) through (v) of the prior sentence. The Special Servicer shall not violate be obligated to seek approval from the Controlling Class Representative under Section 6.11(a) for any law actions to be taken by the Special Servicer with respect to any particular Trust Specially Serviced Mortgage Loan if (i) the Special Servicer has, as set forth in the first paragraph of Section 6.11(a), notified the Controlling Class Representative in writing of various actions that the Special Servicer proposes to take with respect to the work-out or liquidation of that Trust Specially Serviced Mortgage Loan and (ii) for 60 days following the first such notice, the Controlling Class Representative has objected to all of the proposed actions and has failed to suggest any alternative actions that the Special Servicer considers to be consistent with the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. Standard.
(c) The Controlling Class Representative will have no duty or liability to the Trust Fund or Certificateholders (other than the Certificateholders Controlling Class) for any action taken, or for refraining from the taking of any action, action pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees confirms its understanding that any such Non-Serviced Whole Loan the Controlling Holder, with respect to the related Non-Serviced Whole Loan, Class Representative may take actions that favor the interests of one or more classes Classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement Certificates over other Classes of the Certificates, and that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may act solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, that such Non-Serviced Whole Loan the Controlling HolderClass Representative does not have any duties to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class Representative shall not be liable to any Certificateholder, have no liability by reason of its having acted solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so actedClass, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 1 contract
Sources: Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2006-2)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so So long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) if a Special Servicing Loan Event occurs, advise the Special Servicer with respect to all Specially Serviced Loans, and (2) if a Special Servicing Loan Event has not occurred, advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b6.5(b) and the second and third paragraphs of this Section 6.09(a6.5(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer (the “Major Decision Reporting Package”), which the Special Servicer will be required to deliver to the Controlling Class Representative within five Business Days of the Special Servicer’s receipt of notice of the proposed action; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, provided further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a so long as no Control Termination Event is continuing in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan)Certificateholders, the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no unless a Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage the Whole Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may reasonably deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage the Loan Documents, applicable law, any related the Co-Lender Agreement (including the provisions regarding certain consultation rights with the Companion Loan Holders), applicable law or any intercreditor agreement, this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Accepted Servicing Standard, Practices or expose the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests interest of the Certificateholders and/or Certificateholders. With respect to any action requiring the Serviced Companion Loan Holdersconsent of the Controlling Class Representative hereunder, such consent will be deemed given if the Controlling Class Representative does not object within ten (10) Business Days. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage the Loan Documents, the intercreditor agreementprovisions of the Code resulting in an Adverse REMIC Event, applicable law, the REMIC Provisions law or this Agreement, including without limitation, the Accepted Servicing StandardPractices, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 10.17 of this Agreement, the Rule 17g-5 Information Provider Rating Agency of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Accepted Servicing Standard Practices or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative. In the event that no Controlling Class Representative has been appointed or identified to the Servicer or the Special Servicer, as applicable, and the Servicer or Special Servicer, as applicable, has attempted to obtain such information from the Certificate Administrator, then, until such time as the new Controlling Class Representative is identified, the Servicer or the Special Servicer, as applicable, shall have no duty to consult with, provide notice to, or seek the approval or consent of any such Controlling Class Representative, as the case may be. After the occurrence and during the continuance of a Control Termination Event but, with respect to the Controlling Class Representative only, prior to the occurrence of a Consultation Termination Event, the Special Servicer shall consult with the Controlling Class Representative in connection with any Major Decision (and any other actions which otherwise require consultation with the Controlling Class Representative prior to a Consultation Termination Event hereunder) and consider alternative actions recommended by Controlling Class Representative in respect thereof. Such consultation will not be binding on the Special Servicer. In the event the Special Servicer receives no response from the Controlling Class Representative within 10 days following its written request for input on any required consultation, the Special Servicer shall not be obligated to consult with the Controlling Class Representative on the specific matter; provided, however, that the failure of the Controlling Class Representative to respond shall not relieve the Special Servicer from consulting with the Controlling Class Representative on any future matters with respect to the Whole Loan. The Special Servicer shall provide each Major Decision Reporting Package to the Operating Advisor simultaneously upon providing such Major Decision Reporting Package to the Controlling Class Representative. With respect to any particular Major Decision and related Major Decision Reporting Package and any Asset Status Report, the Special Servicer shall make available to the Operating Advisor Servicing Officers with relevant knowledge regarding the Whole Loan and such Major Decision and/or Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Major Decision and/or Asset Status Report and potential conflicts of interest and compensation with respect to such Major Decision and/or Asset Status Report. In addition, after the occurrence and during the continuance of an Operating Advisor Consultation Event, the Special Servicer shall consult with the Operating Advisor (ivtelephonically or electronically) in the case connection with any proposed Major Decision (and such other matters that are subject to consultation rights of the AB Operating Advisor hereunder) and consider alternative actions recommended by the Operating Advisor, in respect thereof, provided that such consultation is on a non-binding basis. In the event that the Special Servicer receives no response from the Operating Advisor within ten (10) days following the later of (i) its written request for input on any required consultation and (ii) delivery of all such additional information reasonably requested by the Operating Advisor related to the subject matter of such consultation, the Special Servicer shall not be obligated to consult with the Operating Advisor on the specific matter; provided, however, that the failure of the Operating Advisor to respond on any specific matters shall not relieve the Special Servicer from its obligation to consult with the Operating Advisor on any future matter with respect to the Whole Loan. In connection with the Controlling Class Representative or Operating Advisor’s right to consent or consult with respect to a Major Decision, as applicable, if the Special Servicer determines that action is necessary to protect the Property or the interests of the Certificateholders from potential harm if such action is not taken, or if a failure to take any such action at such time would be inconsistent with Accepted Servicing Practices, the Special Servicer may take actions with respect to the Property before the expiration of the applicable period for so long the Operating Advisor or Controlling Class Representative to respond as described in this section, if the related Subordinate Companion Loan Holder is Special Servicer reasonably determines in accordance with Accepted Servicing Practices that failure to take such actions before the related Whole Loan Directing Holderexpiration of such period would materially adversely affect the interest of the Certificateholders, and the Special Servicer has made a reasonable effort to contact the Operating Advisor or the Controlling Class Representative, as applicable. After the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative will not shall have no consultation or consent rights hereunder and shall have no right to receive any notices, reports or information (other than notices, reports or information required to be entitled delivered to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan all Certificateholders) or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loanas Controlling Class Representative. However, the Controlling Class Representative will not be entitled shall maintain the right to exercise any of its Voting Rights for the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to same purposes as any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing HolderCertificateholder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Class G or Class HRR Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Class Class G or Class HRR Certificate (or the beneficial ownership of any Control Eligible Class G or Class HRR Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Class G or Class HRR Certificate (or the beneficial ownership interest in a Control Eligible Class G or Class HRR Certificate) to notify in writing the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. The initial Controlling Class Representative and any subsequent Controlling Class Representative is hereby deemed to have agreed and acknowledged by virtue of its purchase of a Control Eligible Certificate (or beneficial ownership interest in such Certificate) that its identity will be reported monthly by the Certificate Administrator in the Distribution Date Statement. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Servicer, the Operating Advisor and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Class G or Class HRR Certificate. In addition, upon the request of the Servicer, the Special Servicer, the Operating Advisor or the Trustee, as applicable, the Certificate Administrator shall provide (on a reasonably prompt basis) the identity of the then current Controlling Class, a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement, or o
Appears in 1 contract
Sources: Trust and Servicing Agreement (CSAIL 2017-Cx10 Commercial Mortgage Trust)
The Controlling Class Representative. The Controlling Class Representative will be entitled to advise (a) Other than in consultation with respect to the C▇▇▇▇▇▇▇▇▇ River Plaza North Whole Loan prior Representative with respect to any Whole Loan Control Appraisal Event and actions affecting the WPC Department Store Portfolio Whole ▇▇▇▇▇▇▇▇▇ Mortgage Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent following actions of the Special Servicer for a Major DecisionServicer, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, contrary except as necessary or advisable to avoid an Adverse REMIC Event and except as set forth in, and in any event subject to Section 6.09(b) and to, the second and third paragraphs paragraph of this Section 6.09(a)6.11, both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected (in consultation with the ▇▇▇▇▇▇▇▇▇ Representative with respect to actions affecting the ▇▇▇▇▇▇▇▇▇ Mortgage Loan) in writing within ten (10) Business Days of being notified thereof, which notification with respect to the action described in clause (or in the case of a determination of an Acceptable Insurance Default, twenty (20vi) days) after receipt of the written recommendation and analysis from below shall be copied by the Special Servicer; Servicer to the Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative Representative's approval will be deemed to have approved such action; been given), provided, furtherhowever, that, in the event that the Special Servicer or Master Servicer, as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of if the Controlling Class Representative prior to (in consultation with the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only Representative with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain actions affecting the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇▇▇▇ River Plaza North Whole Mortgage Loan, prior to any Whole Loan Control Appraisal Event, ) and the WPC Department Store Portfolio Whole Special Servicer cannot agree on a course of action within 60 days of the occurrence of the event under discussion the Special Servicer shall implement its proposed course of action:
(i) any foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default;
(ii) any modification of a monetary term of a Mortgage Loan other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less;
(iii) any proposed sale of a defaulted Mortgage Loan or REO Property (other than in connection with the termination of the Trust Fund);
(iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property;
(v) any acceptance of substitute or additional collateral for a Mortgage Loan unless required by the underlying loan documents;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause; and 192
(vii) any acceptance of an assumption agreement releasing a borrower from liability under a Mortgage Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative (in consultation with the ▇▇▇▇▇▇▇▇▇ Representative with respect to actions affecting the ▇▇▇▇▇▇▇▇▇ Mortgage Loan) may deem advisable or as to which provision is otherwise made herein. Notwithstanding ; provided that notwithstanding anything herein to the contrary, contrary no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s 's responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or Certificateholders. With respect to any actions affecting the Serviced Companion Loan Holders. In ▇▇▇▇▇▇▇▇▇ Mortgage Loan, if the event Controlling Class Representative and the ▇▇▇▇▇▇▇▇▇ Representative do not agree on how to advise or direct the Special Servicer, after consultation as provided for under this Section 6.11, the ▇▇▇▇▇▇▇▇▇ Representative will also be entitled to advise the Special Servicer with respect to the actions of the Special Servicer set forth in the first two paragraphs of this Section 6.11 affecting the ▇▇▇▇▇▇▇▇▇ Mortgage Loan, subject to the same conditions and limitations with respect to the Controlling Class Representative. If the ▇▇▇▇▇▇▇▇▇ Representative and the Controlling Class Representative give conflicting directions or Master Servicer, as applicable, determines that a refusal objections to consent by the Special Servicer (and such directions or objections do not conflict with any conditions or limitations contained in this Section 6.11) then the Special Servicer shall follow the directions or objections of either the Controlling Class Representative or any advice from of the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class ▇▇▇▇▇▇▇▇▇ Representative, whichever it determines to be in the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation best interest of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer Certificateholders such determination to be made in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special ServicerStandard. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for error errors in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) confirms its understanding that the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes Classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement Certificates over other Classes of the Certificates, and that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may act solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling 193 Class, that such Non-Serviced Whole Loan the Controlling HolderClass Representative does not have any duties to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class Representative shall not be liable deemed to any Certificateholderhave been negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance, by reason of its having acted solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)
The Controlling Class Representative. (a) Other than with respect Subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the following actions of the Special Servicer with respect to non-Specially the Serviced Trust Mortgage Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decisionand any Administered REO Properties, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, contrary except as necessary or advisable to avoid an Adverse REMIC Event and except as set forth in, and in any event subject to to, Section 6.09(b) and the second and third paragraphs of this Section 6.09(a6.11(b), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take (or permit the Master Servicer to take) any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze Serviced Trust Mortgage Loans and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision Administered REO Properties as to which the Controlling Class Representative has objected in writing within ten (10) 10 Business Days of being notified in writing thereof, which notification with respect to the action described in clauses (or in the case of a determination of an Acceptable Insurance Default, twenty vi) and (20viii) days) after receipt of the written recommendation and analysis from below shall be copied by the Special Servicer; Servicer to the Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten (10) 10 Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative Representative's approval will be deemed to have approved such action; provided, further, that, in the event that the Special Servicer or Master Servicer, as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: given):
(i) any foreclosure upon or comparable conversion (which may include acquisitions of an Administered REO Property) of the Controlling Class Representative may ownership of properties securing such of the Trust Specially Serviced Mortgage Loans as come or have special relationships come into and interests that conflict with those of Holders of one or more Classes of Certificates; continue in default;
(ii) any modification or consent to a modification of a material term of a Serviced Trust Mortgage Loan (excluding the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders waiver of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one due-on-sale or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted due-on-encumbrance clause, as set forth in clauses clause (i)-(ivvii) below), including the timing of this paragraph, and no Certificateholder may take payments or a modification consisting of the extension of the maturity date of a Serviced Trust Mortgage Loan;
(iii) any action whatsoever against the Controlling Class Representative proposed sale of any Serviced Trust Defaulted Mortgage Loan or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, thatAdministered REO Property (other than in connection with the termination of the Trust Fund or, in the case of a Serviced Whole Trust Defaulted Mortgage Loan, pursuant to Section 3.18) for less than the rights Purchase Price of the Controlling Class Representative are subject to the Serviced Trust Defaulted Mortgage Loan or related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Trust REO Loan, shall have no liability as applicable;
(iv) any determination to the Trust Fund bring an Administered REO Property into compliance with applicable environmental laws or the Certificateholders to otherwise address Hazardous Materials located at an Administered REO Property;
(v) any release of material real property collateral for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Trust Mortgage Loan, may take actions that favor other than (A) where the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall release is not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain conditioned upon obtaining the consent of the Controlling Class Representative but for the occurrence lender or certain specified conditions being satisfied, (B) upon satisfaction of a Control Termination Event set forth herein; that Serviced Trust Mortgage Loan, (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (ivC) in connection with a pending or threatened condemnation action or (D) in connection with a full or partial defeasance of that Serviced Trust Mortgage Loan;
(vi) any acceptance of substitute or additional real property collateral for any Serviced Trust Mortgage Loan (except where the case acceptance of the AB Whole Loansubstitute or additional collateral is not conditioned upon obtaining the consent of the lender, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, in which case only notice to the Controlling Class Representative will not be entitled to exercise required);
(vii) any waiver of the rights a due-on-sale or due-on-encumbrance clause in this Section 6.09 any Serviced Trust Mortgage Loan;
(viii) any releases of earn-out reserves or related letters of credit with respect to a Mortgaged Property securing a Serviced Trust Mortgage Loan (other than where the AB Whole Loan or any related REO Property, and instead all such rightsrelease is not conditioned upon obtaining the consent of the lender, in addition which case only notice to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any required, it being understood and agreed that for purposes of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standardrelease of earnout reserves shall mean the disbursement or funding to a Mortgagor of previously unfunded, escrowed or otherwise reserved portions of the REMIC Provisions or that would (i) expose loan proceeds of the Master Servicer, the Special Servicer, the Depositor, a applicable Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address until certain conditions precedent thereto relating to the Certificate Administrator and to notify the Certificate Administrator satisfaction of the transfer of any Control Eligible Certificate performance related criteria (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Servi.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-Lc1)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for For so long as no Control Termination Event has occurred and is continuingcontinuing and exclusive of any Excluded Loan, the Controlling Class Representative shall be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the Master Servicer’s written analysis and recommendation and all information from in the Master Servicer’s possession or reasonably available to it that the Special Servicer may reasonably request) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that (i) if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such actionaction and (ii) the consent of the Controlling Class Representative shall not be required in connection with a Major Decision with respect to an Excluded Loan; provided, further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (other than with respect to any Excluded Loan and until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In additionNotwithstanding the foregoing, other than the Controlling Class Representative shall have no consent or consultation rights with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior Major Decisions with respect to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Excluded Loan, prior to the WPC Department Store Portfolio Securitization Date. In addition, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative (other than with respect to any Excluded Loan) may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of a Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this AgreementAgreement (other than with respect to any Excluded Loan), and the Master Servicer, the Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it such party would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event as set forth hereinherein (other than with respect to any Excluded Loan); (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; and (iv) in the case none of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, rights of the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 apply with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole an Excluded Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Master Servicer, the Operating Advisor and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Control Eligible Certificate. In addition, upon the request (which may be by email) of the Master Servicer, the Special Servicer, the Operating Advisor or the Trustee, as applicable, the Certificate Administrator shall provide (on a reasonably prompt basis) the identity of each Companion Loan Holder, the then-current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement or in connection with a request made by the Operating Advisor in connection with its obligation under Section 3.28(d)(ii) of this Agreement to deliver a copy of the Operating Advisor Annual Report to the Controlling Class Representative, and otherwise at the expense of the requesting party) to such request
Appears in 1 contract
Sources: Pooling and Servicing Agreement (CSAIL 2015-C4 Commercial Mortgage Trust)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the The Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent following actions of the Special Servicer for a Major DecisionServicer, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, contrary except as necessary or advisable to avoid an Adverse REMIC Event and except as set forth in, and in any event subject to Section 6.09(b) and to, the second and third paragraphs paragraph of this Section 6.09(a)6.11, both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days of being notified thereof (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative Representative's approval will be deemed to have approved such action; providedbeen given),provided, further, that, in the event that the Special Servicer or Master Servicer, as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders andhowever, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to Special Servicer cannot agree on a course of action within 60 days of the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the event under discussion the Special ServicerServicer shall implement its proposed course of action:
(i) any foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; 174
(ii) any modification or waiver of a monetary term of a Mortgage Loan other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less;
(iii) any proposed sale of a defaulted Mortgage Loan or REO Property (other than in connection with the termination of the Trust Fund);
(iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property;
(v) any acceptance of substitute or additional collateral for a Mortgage Loan unless permitted by the underlying loan documents;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause; and
(vii) any acceptance of an assumption agreement releasing a borrower from liability under a Mortgage Loan. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding ; provided that notwithstanding anything herein to the contrary, contrary no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s 's responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special ServicerCertificateholders. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for error errors in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) confirms its understanding that the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes Classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement Certificates over other Classes of the Certificates, and that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may act solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, that such Non-Serviced Whole Loan the Controlling HolderClass Representative does not have any duties to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class Representative shall not be liable deemed to any Certificateholderhave been negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance, by reason of its having acted solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)
The Controlling Class Representative. (a) Other than with respect Subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the following actions of the Special Servicer with respect to non-Specially the Serviced Trust Mortgage Loans as to all matters for which and any Administered REO Properties (in the Master Servicer must obtain the consent or deemed consent case of the Special Servicer for a Major DecisionBlackpoint Puerto Rico Retail Portfolio Loan Combination and related Loan Combination REO Property, subject to the prior rights of the Blackpoint Puerto Rico Retail Portfolio Controlling Party contemplated in Section 6.12 below and as provided in the Blackpoint Puerto Rico Retail Portfolio Intercreditor Agreement), and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, contrary except as necessary or advisable to avoid an Adverse REMIC Event and except as set forth in, and in any event subject to to, Section 6.09(b) and the second and third paragraphs of this Section 6.09(a6.11(b), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take (or permit the applicable Master Servicer to take) any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination Serviced Trust Mortgage Loans and any Administered REO Properties (in the case of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze Blackpoint Puerto Rico Retail Portfolio Loan Combination and make a recommendation regarding such Major Decision (subjectrelated Loan Combination REO Property, however, subject to the right prior rights of the Special Servicer to process such Major Decision directly pursuant to Blackpoint Puerto Rico Retail Portfolio Controlling Party contemplated in Section 3.09 or Section 3.24) (6.12 below and as provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major DecisionBlackpoint Puerto Rico Retail Portfolio Intercreditor Agreement) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) 10 Business Days of being notified in writing thereof, which notification with respect to the action described in clauses (or in the case of a determination of an Acceptable Insurance Default, twenty vi) and (20viii) days) after receipt of the written recommendation and analysis from below shall be copied by the Special Servicer; Servicer to the applicable Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten (10) 10 Business Day period period, then the Controlling Class Representative's approval will be deemed to have been given):
(i) any foreclosure upon or twenty comparable conversion (20which may include acquisitions of an Administered REO Property) day periodof the ownership of properties securing such of the Trust Specially Serviced Mortgage Loans as come or have come into and continue in default;
(ii) any modification or consent to a modification of a material term of a Serviced Trust Mortgage Loan (excluding the waiver of any due-on-sale or due-on-encumbrance clause, as set forth in clause (vii) below), including the timing of payments or a modification consisting of the extension of the maturity date of a Serviced Trust Mortgage Loan;
(iii) any proposed sale of any Serviced Trust Defaulted Mortgage Loan or any Administered REO Property (other than in connection with the termination of the Trust Fund or, in the case of a Serviced Trust Defaulted Mortgage Loan, pursuant to Section 3.18) for less than the Purchase Price of the subject Trust Defaulted Mortgage Loan or related Trust REO Loan, as applicable;
(iv) any determination to bring an Administered REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an Administered REO Property;
(v) any release of material real property collateral for any Serviced Trust Mortgage Loan, then other than (A) where the release is not conditioned upon obtaining the consent of the lender or certain specified conditions being satisfied, (B) upon satisfaction of that Serviced Trust Mortgage Loan, (C) in connection with a pending or threatened condemnation action or (D) in connection with a full or partial defeasance of that Serviced Trust Mortgage Loan;
(vi) any acceptance of substitute or additional real property collateral for any Serviced Trust Mortgage Loan (except where the acceptance of the substitute or additional collateral is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative will be deemed to have approved such action; provided, further, that, required);
(vii) any waiver of a due-on-sale or due-on-encumbrance clause in the event that the Special Servicer any Serviced Trust Mortgage Loan;
(viii) any releases of earn-out reserves or Master Servicer, as applicable, determines that immediate action, related letters of credit with respect to a Major Decision, or any Mortgaged Property securing a Trust Mortgage Loan (other matter requiring than where the release is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative prior will be required);
(ix) any termination or replacement, or consent to the occurrence and continuance termination or replacement, of a Control Termination Event in this Agreementproperty manager with respect to any Serviced Mortgaged Property or any termination or change, is necessary or consent to protect the interests termination or change, of the Certificateholders franchise for any Serviced Mortgaged Property operated as a hospitality property (other than where the action is not conditioned upon obtaining the consent of the lender, in which case only prior notice to the Controlling Class Representative will be required);
(x) any determination that an insurance-related default in respect of a Serviced Trust Mortgage Loan is an Acceptable Insurance Default or that earthquake or terrorism insurance is not available at commercially reasonable rates; and
(xi) any waiver of insurance required under the related Mortgage Loan documents for a Serviced Trust Mortgage Loan (except as contemplated in clause (x) above); provided that, with respect to any Serviced Whole Trust Mortgage Loan (if applicable), the related other than a Trust Specially Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Mortgage Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of 10 Business Days within which the Controlling Class Representative for must object to any Major Decision following such action shall not exceed by more than five Business Days the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, 10 Business Day period the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only has to object to the extent applicable Master Servicer taking such consultation withaction as set forth in Sections 3.02, or consent of, the Controlling Class Representative would have been required prior to the occurrence 3.08 and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer3.20. In addition, other than with respect subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, any such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. .
(b) Notwithstanding anything herein to the contrary, no such directionadvice, and no direction or objection given or made, or consent withheld, by the Controlling Class Representative, contemplated by the preceding paragraph Section 6.11(a) or any other section of this paragraphAgreement, may (i) require or cause the applicable Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, the terms of any related Co-Lender Agreement or Serviced Trust Mortgage Loan, any intercreditor agreement, provision of this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the such Master Servicer’s and 's or the Special Servicer’s 's obligation to act in accordance with the Servicing StandardStandard or the Mortgage Loan documents for any Serviced Trust Mortgage Loan, (ii) result in an Adverse REMIC Event with respect to REMIC I or REMIC II or otherwise violate the REMIC Provisions or result in an Adverse Grantor Trust Event or result in an adverse tax consequence for the Trust Fund, except that the Controlling Class Representative -260- may advise or direct that the Trust Fund earn "net income from foreclosure property" that is subject to tax with the consent of the Special Servicer, if the Special Servicer determines that the net after-tax benefit to Certificateholders is greater than another method of operating or net-leasing the subject REO Property, (iii) expose the Depositor, the applicable Master Servicer, the Special Servicer, the Certificate AdministratorTrust Fund, the Trust Trustee, any Fiscal Agent or the Trustee any of their respective Affiliates, directors, officers, employees or agents, to liabilityany claim, suit or liability to which they would not otherwise be subject absent such advice, direction or objection or consent withheld, (iv) materially expand the scope of the applicable Master Servicer’s 's or the Special Servicer’s 's responsibilities hereunder or (v) cause the applicable Master Servicer or the Special Servicer to act, or fail to act, in a manner which in violates the reasonable judgment Servicing Standard. The applicable Master Servicer and the Special Servicer shall disregard any action, direction or objection on the part of the Controlling Class Representative that would have any of the effects described in clauses (i) through (v) of the prior sentence. In addition, if the applicable Master Servicer or the Special Servicer determines that immediate action is not in necessary to protect the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer(as a collective whole), as applicable, determines that it may take such action without waiting for a refusal to consent by response from the Controlling Class Representative or any advice Representative. The Special Servicer shall not be obligated to seek approval from the Controlling Class Representative would otherwise cause under Section 6.11(a) for any actions to be taken by the Special Servicer or Master Servicer, as applicable, with respect to violate the terms of any particular Trust Specially Serviced Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, if (i) the Special Servicer or Master Servicerhas, as applicableset forth in the first paragraph of Section 6.11(a), shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of notified the Controlling Class Representative in writing of various actions that does not violate the Special Servicer proposes to take with respect to the work-out or liquidation of that Trust Specially Serviced Mortgage Loan and (ii) for 60 days following the first such notice, the Controlling Class Representative has objected to all of the proposed actions and has failed to suggest any law or alternative actions that the Special Servicer considers to be consistent with the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. Standard.
(c) The Controlling Class Representative will have no duty or liability to the Trust Fund or Certificateholders (other than the Certificateholders Controlling Class) for any action taken, or for refraining from the taking of any action, action pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees confirms its understanding that any such Non-Serviced Whole Loan the Controlling Holder, with respect to the related Non-Serviced Whole Loan, Class Representative may take actions that favor the interests of one or more classes Classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement Certificates over other Classes of the Certificates, and that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may act solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, that such Non-Serviced Whole Loan the Controlling HolderClass Representative does not have any duties to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class Representative shall not be liable to any Certificateholder, have no liability by reason of its having acted solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so actedClass, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative or any director, officer, employee, agent or principal thereof for having so acted.
(bd) Notwithstanding anything Any right to the contrary contained herein: (i) take action, grant or withhold any consent or otherwise exercise any right, election or remedy afforded the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to under this AgreementAgreement may, after the occurrence and during the continuance of a Control Termination Event but prior unless otherwise expressly provided herein to the occurrence and continuance of a Consultation Termination Eventcontrary, be affirmatively waived by the Controlling Class Representative shall remain entitled by written notice given to receive any notices, reports the Trustee or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and as applicable. Upon delivery of any other applicable party shall consult with such notice of waiver given by the Controlling Class Representative, any time period (exclusive or otherwise) afforded the Controlling Class Representative in connection with to exercise any action such right, make any such election or grant or withhold any such consent shall thereupon be deemed to be taken or refrained from taking to the extent it would have been required to obtain the consent expired. Any waiver of the Controlling Class Representative but for the occurrence of rights by a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holderset forth above, the shall not be binding any subsequent Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing HolderRepresentative.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 1 contract
Sources: Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2007-6)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for For so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, and (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major DecisionDecision [, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings meeting with an the Other Master Servicer and an the Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement]. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, provided further, that, in the event that the Special Servicer or Master ServicerServicer (in the event the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable)Loan, the related Serviced Companion Loan Holder(s) Holder (as a collective whole as if such Certificateholders and, if applicable, the and related Serviced Companion Loan Holder(s) Holder constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)’s) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced a Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant subject to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, that the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so actedintercreditor agreement.
(b) Notwithstanding anything to the contrary contained herein: (i) after the occurrence and during the continuance of any Control Termination Event, the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, ; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special ServServicer, the Master Servicer and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Control Eligible Certificate. In addition, upon the request of the Master Servicer, the Special Servicer or the Trustee, as applicable, the Certificate Administrator shall provide the identity of the then-current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement, and otherwise at the expense of the requesting party) of the Controlling Class to such requesting party. In the event of a change in the Controlling Class, the Certificate Administrator shall promptly contact [_____] or one of its Affiliates, or, if applicable, any successor Controlling Class Representative or Controlling Class Certificateholder(s), and determine whether such entity is the Holder (or Beneficial Owner) of at least a majority of the Controlling Class (in effect after such change in Controlling Class) by Certificate Principal Amount. If at any time that [_____] or one of its Affiliates, or any successor Controlling Class Certificateholder(s) is no longer the Holder (or Beneficial Owner) of at least a majority of the Controlling Class by Certificate Principal Amount and the Certificate Administrator has neither (i) received notice of the then-current Controlling Class Certificateholders of at least a majority of the Controlling Class by Certificate Principal Amount nor (ii) received notice of a replacement Controlling Class Representative pursuant to this Agreement, then a Control Termination Event and a Consultation Termination Event shall be deemed to have occurred and shall be deemed to continue until such time as the Certificate Administrator receives either such notice. Upon receipt of notice of a change in Controlling Class Representative, the Certificate Administrator shall promptly forward notice thereof to each other party to this Agreement.
(e) Once a Controlling Class Representative has been selected pursuant to clause (c) above, each of the Master Servicer, the Special Servicer, the Operating Advisor, the Depositor, the Certificate Administrator, the Trustee and each other Certificateholder (or Beneficial Owner, if applicable) shall be entitled to rely on such selection unless a majority of the Certificateholders of the Controlling Class, by Certificate Principal Amount, or such Controlling Class Representative shall have notified the Certificate Administrator, the Master Servicer and each other Certificateholder of the Controlling Class, in writing, of the resignation of such Controlling Class Representative or the selection of a new Controlling Class Representative. Upon receipt of written notice of, or other knowledge of, the resignation of a Controlling Class Representative, the Certificate Administrator shall request the Certificateholders of the Controlling Class to select a new Controlling Class Representative.
(f) If at any time a book-entry certificate belongs to the Controlling Class, the Certificate Administrator shall notify the related Beneficial Owner or Beneficial Owners (through the Depository, unless the Certificate Administrator shall have been previously provided with the name and address of such Beneficial Owner or Beneficial Owners) of such event and shall request that it be informed of any change in the identity of the related Beneficial Owner from time to time.
(g) Until it receives notice to the contrary, each of the Master Servicer, the Special Servicer, the Operating Advisor, the Depositor and the Trustee and the Certificate Administrator shall be entitled to rely on the most recent notification with respect to the identity of the Certificateholders of the Controlling Class and the Controlling Class Representative.
(h) Notwithstanding anything to the contrary contained herein, during such time as the Class [E] Certificates is the Controlling Class, the Holder of more than 50% of the Controlling Class Certificates (by Certificate Principal Amount) may waive its right to act as or appoint a Controlling Class Representative and to exercise any of the rights of the Controlling Class Representative or to cause the exe
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Gs Mortgage Securities Corp Ii)
The Controlling Class Representative. (a) Other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the The Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent following actions of the Special Servicer for a Major DecisionServicer, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, contrary except as necessary or advisable to avoid an Adverse REMIC Event and except as set forth in, and in any event subject to Section 6.09(b) and to, the second and third paragraphs paragraph of this Section 6.09(a)6.11, both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days of being notified thereof (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative Representative's approval will be deemed to have approved such action; providedbeen given),provided, further, that, in the event that the Special Servicer or Master Servicer, as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders andhowever, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to Special Servicer cannot agree on a course of action within 60 days of the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the event under discussion the Special ServicerServicer shall implement its proposed course of action:
(i) any foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default;
(ii) any modification of a monetary term of a Mortgage Loan other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less;
(iii) any proposed sale of a defaulted Mortgage Loan or REO Property (other than in connection with the termination of the Trust Fund);
(iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property;
(v) any acceptance of substitute or additional collateral for a Mortgage Loan;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause; and
(vii) any acceptance of an assumption agreement releasing a borrower from liability under a Mortgage Loan. In addition, other than with respect to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding ; provided that notwithstanding anything herein to the contrary, contrary no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s 's responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special ServicerCertificateholders. The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for error errors in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) confirms its understanding that the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes Classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement Certificates over other Classes of the Certificates, and that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may act solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, that such Non-Serviced Whole Loan the Controlling HolderClass Representative does not have any duties to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class Representative shall not be liable deemed to any Certificateholderhave been negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance, by reason of its having acted solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Commercial Mortgage Pass Through Certiticates Series 1999 C2)
The Controlling Class Representative. (a) Other than with respect Subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative shall will be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the following actions of the Special Servicer with respect to non-Specially the Serviced Trust Mortgage Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decisionand any Administered REO Properties, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, contrary except as necessary or advisable to avoid an Adverse REMIC Event and except as set forth in, and in any event subject to to, Section 6.09(b) and the second and third paragraphs of this Section 6.09(a6.11(b), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall will not be permitted to take (or permit the Master Servicer to take) any of the following actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze Serviced Trust Mortgage Loans and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision Administered REO Properties as to which the Controlling Class Representative has objected in writing within ten (10) 10 Business Days of being notified in writing thereof, which notification with respect to the action described in clauses (or in the case of a determination of an Acceptable Insurance Default, twenty vi) and (20viii) days) after receipt of the written recommendation and analysis from below shall be copied by the Special Servicer; Servicer to the Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten (10) 10 Business Day period period, then the Controlling Class Representative's approval will be deemed to have been given):
(i) any foreclosure upon or twenty comparable conversion (20which may include acquisitions of an Administered REO Property) day periodof the ownership of properties securing such of the Trust Specially Serviced Mortgage Loans as come or have come into and continue in default;
(ii) any modification or consent to a modification of a material term of a Serviced Trust Mortgage Loan (excluding the waiver of any due-on-sale or due-on-encumbrance clause, as set forth in clause (vii) below), including the timing of payments or a modification consisting of the extension of the maturity date of a Serviced Trust Mortgage Loan;
(iii) any proposed sale of any Serviced Trust Defaulted Mortgage Loan or any Administered REO Property (other than in connection with the termination of the Trust Fund or, in the case of a Serviced Trust Defaulted Mortgage Loan, pursuant to Section 3.18) for less than the Purchase Price of the subject Serviced Trust Defaulted Mortgage Loan or related Trust REO Loan, as applicable;
(iv) any determination to bring an Administered REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an Administered REO Property;
(v) any release of material real property collateral for any Serviced Trust Mortgage Loan, then other than (A) where the release is not conditioned upon obtaining the consent of the lender or certain specified conditions being satisfied, (B) upon satisfaction of that Serviced Trust Mortgage Loan, (C) in connection with a pending or threatened condemnation action or (D) in connection with a full or partial defeasance of that Serviced Trust Mortgage Loan;
(vi) any acceptance of substitute or additional real property collateral for any Serviced Trust Mortgage Loan (except where the acceptance of the substitute or additional collateral is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative will be deemed to have approved such action; provided, further, that, required);
(vii) any waiver of a due-on-sale or due-on-encumbrance clause in the event that the Special Servicer any Serviced Trust Mortgage Loan;
(viii) any releases of earn-out reserves or Master Servicer, as applicable, determines that immediate action, related letters of credit with respect to a Major Decision, or any Mortgaged Property securing a Serviced Trust Mortgage Loan (other matter requiring than where the release is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative prior to the occurrence will be required, it being understood and continuance agreed that for purposes of a Control Termination Event in this Agreement, is necessary the release of earnout reserves shall mean the disbursement or funding to protect the interests a Mortgagor of previously unfunded, escrowed or otherwise reserved portions of the Certificateholders loan proceeds of the applicable Mortgage Loan until certain conditions precedent thereto relating to the satisfaction of performance related criteria (i.e. project reserve thresholds, lease-up requirements, sales requirements, etc.), as set forth in the applicable Mortgage Loan documents have been satisfied);
(ix) any termination or replacement, or consent to the termination or replacement, of a property manager with respect to any Serviced Mortgaged Property or any termination or change, or consent to the termination or change, of the franchise for any Serviced Mortgaged Property operated as a hospitality property (other than where the action is not conditioned upon obtaining the consent of the lender, in which case only prior notice to the Controlling Class Representative will be required);
(x) any determination that an insurance-related default in respect of a Serviced Trust Mortgage Loan is an Acceptable Insurance Default or that earthquake or terrorism insurance is not available at commercially reasonable rates; and
(xi) any waiver of insurance required under the related Mortgage Loan documents for a Serviced Trust Mortgage Loan (except as contemplated in clause (x) above); provided that, with respect to any Serviced Whole Trust Mortgage Loan (if applicable), the related other than a Trust Specially Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the C▇▇▇▇▇▇ River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Mortgage Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of 10 Business Days within which the Controlling Class Representative for must object to any Major Decision following such action shall not exceed by more than five Business Days the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, 10 Business Day period the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only has to object to the extent Master Servicer taking such consultation withaction as set forth in Sections 3.02, or consent of, the Controlling Class Representative would have been required prior to the occurrence 3.08 and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer3.20. In addition, other than with respect subject to the C▇▇▇▇▇▇ River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuingSection 6.11(b), the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, any such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. .
(b) Notwithstanding anything herein to the contrary, no such directionadvice, and no direction or objection given or made, or consent withheld, by the Controlling Class Representative, contemplated by the preceding paragraph Section 6.11(a) or any other section of this paragraphAgreement, may (i) require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, the terms of any related Co-Lender Agreement or Serviced Trust Mortgage Loan, any intercreditor agreement, provision of this Agreement or the REMIC ProvisionsAgreement, including without limitation each of the Master Servicer’s and 's or the Special Servicer’s 's obligation to act in accordance with the Servicing StandardStandard or the Mortgage Loan documents for any Serviced Trust Mortgage Loan, (ii) result in an Adverse REMIC Event with respect to REMIC I or REMIC II or otherwise violate the REMIC Provisions or result in an Adverse Grantor Trust Event or have adverse tax consequences for the Trust Fund, (iii) expose the Depositor, the Master Servicer, the Special Servicer, the Certificate AdministratorTrust Fund, the Trust Trustee, the Fiscal Agent or the Trustee any of their respective Affiliates, directors, officers, employees or agents, to liabilityany claim, suit or liability to which they would not otherwise be subject absent such advice, direction or objection or consent withheld, (iv) materially expand the scope of the Master Servicer’s 's or the Special Servicer’s 's responsibilities hereunder or (v) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in violates the reasonable judgment of the Servicing Standard. The Master Servicer or and the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent any action, direction or advise and notify in writing objection on the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval part of the Controlling Class Representative that does would have any of the effects described in clauses (i) through (v) of the prior sentence. The Special Servicer shall not violate be obligated to seek approval from the Controlling Class Representative under Section 6.11(a) for any law actions to be taken by the Special Servicer with respect to any particular Trust Specially Serviced Mortgage Loan if (i) the Special Servicer has, as set forth in the first paragraph of Section 6.11(a), notified the Controlling Class Representative in writing of various actions that the Special Servicer proposes to take with respect to the work-out or liquidation of that Trust Specially Serviced Mortgage Loan and (ii) for 30 days following the first such notice, the Controlling Class Representative has objected to all of the proposed actions and has failed to suggest any alternative actions that the Special Servicer considers to be consistent with the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer. Standard.
(c) The Controlling Class Representative will have no duty or liability to the Trust Fund or Certificateholders (other than the Certificateholders Controlling Class) for any action taken, or for refraining from the taking of any action, action pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement. Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees confirms its understanding that any such Non-Serviced Whole Loan the Controlling Holder, with respect to the related Non-Serviced Whole Loan, Class Representative may take actions that favor the interests of one or more classes Classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement Certificates over other Classes of the Certificates, and that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative may act solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing AgreementControlling Class, that such Non-Serviced Whole Loan the Controlling HolderClass Representative does not have any duties to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class Representative shall not be liable to any Certificateholder, have no liability by reason of its having acted solely in the interests of the holders Holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so actedClass, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan the Controlling Holder, with respect to such Non-Serviced Whole Loan, Class Representative or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Serv
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)