Common use of The Directing Holder Clause in Contracts

The Directing Holder. (a) For so long as no Control Termination Event has occurred and is continuing, the Directing Holder shall be entitled to advise (1) the Special Servicer with respect to all Specially Serviced Mortgage Loans (other than any Excluded Loan or Servicing Shift Mortgage Loan), (2) the Special Servicer with respect to Non-Specially Serviced Mortgage Loans (other than any Excluded Loan) as to all Special Servicer Major Decisions, and (3) the Master Servicer with respect to Non-Specially Serviced Mortgage Loans (other than any Excluded Loan) as to all Master Servicer Major Decisions. Notwithstanding, anything herein to the contrary, except as set forth in, and in any event subject to the second and third paragraphs of this Section 6.08, with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan, any Servicing Shift Mortgage Loan or any Excluded Loan) or any Serviced Whole Loan, for so long as no Control Termination Event has occurred and is continuing, neither the Master Servicer or the Special Servicer shall be permitted to take any of the following actions (each a “Major Decision”) as to which the Directing Holder has objected in writing within ten (10) Business Days (or thirty (30) days with respect to clause (xiv) of the definition of “Major Decision” below) after receipt of the related Major Decision Reporting Package (provided that if such written objection has not been received by the Master Servicer or the Special Servicer, as applicable, within such ten (10) Business Day (or thirty (30) day) period, then the Directing Holder will be deemed to have approved such action): (i) any proposed or actual foreclosure upon or comparable conversion (which may include acquisition of an REO Property) of the ownership of properties securing such of the Mortgage Loans and/or Serviced Whole Loans as come into and continue in default; (ii) any modification, consent to a modification or waiver of any monetary term (other than Penalty Charges (which the Master Servicer or the Special Servicer, as applicable, is permitted to waive pursuant to this Agreement)) or material non-monetary term (including, without limitation the timing of payments and acceptance of discounted pay-offs, but excluding the waiver of Penalty Charges) of a Mortgage Loan or Serviced Whole Loan or any extension of the maturity date of such Mortgage Loan or Serviced Whole Loan; (iii) any sale of a Defaulted Mortgage Loan and any related defaulted Companion Loan, as applicable, or any REO Property (other than in connection with the termination of the Trust) for less than the applicable Purchase Price (excluding the amount described in clause (vi) and clause (vii) of the definition of “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 any acceptance of substitute or additional collateral for a Mortgage Loan or Serviced Whole Loan or any consent to either of the foregoing, other than immaterial condemnation actions and other similar takings, or if otherwise required pursuant to the specific terms of the related Mortgage Loan or Serviced Whole Loan and for which there is no lender discretion; (vi) any waiver of a “due-on-sale” or “due-on-encumbrance” clause with respect to a Mortgage Loan or Serviced Whole Loan, if lender consent is required, any consent to such waiver or consent to a transfer of the Mortgaged Property or interests in the Mortgagor or consent to the incurrence of additional debt, other than any such transfer or incurrence of debt as may be effected without the consent of the lender under the related loan agreement or related to an immaterial easement, right of way or similar agreement; (vii) releases of amounts from any escrow accounts, reserve accounts or letters of credit held as performance or “earn-out” escrows or reserves, other than those required pursuant to the specific terms of the related Mortgage Loan or a Serviced Whole Loan and for which there is no lender discretion; (viii) any acceptance of an assumption agreement or any other agreement permitting transfers of interests in a Mortgagor or guarantor or releasing a Mortgagor or guarantor from liability under a Mortgage Loan or Serviced Whole Loan other than pursuant to the specific terms of such Mortgage Loan or Serviced Whole Loan and for which there is no lender discretion; (ix) following a default or an event of default with respect to a Mortgage Loan or Serviced Whole Loan, any acceleration of the Mortgage Loan or Serviced Whole Loan, as the case may be, or initiation of judicial, bankruptcy or similar proceedings under the related Mortgage Loan documents or with respect to the related borrower or Mortgaged Property; (x) approving leases, lease modifications or amendments or any requests for subordination non-disturbance and attornment agreements or other similar agreements with respect to any lease that (a) involves a ground lease or lease of an outparcel or affects an area greater than or equal to the lesser of (1) 20,000 square feet or (2) 20% of the net rentable area of the related Mortgaged Property, (b) involves a tenant or space specifically identified by name or space location in the related Mortgage Loan documents as requiring the consent of the lender for the associated activity or (c) such transaction is not a routine leasing matter for a customary lease of space for parking office retail, warehouse, industrial and/or manufacturing purposes; (xi) the voting on any plan of reorganization, restructuring or similar plan in the bankruptcy of a Mortgagor; (xii) any property management company changes or franchise changes to the extent the lender is required to consent or approve under the Mortgage Loan documents; (xiii) any modification, waiver or amendment of a intercreditor agreement, Co-Lender Agreement or similar agreement with any mezzanine lender or subordinate debt holder related to a Mortgage Loan or Serviced Whole Loan, or an action to enforce rights with respect thereto, in each case, in a manner that materially and adversely affects the holders of the Control Eligible Certificates; (xiv) any determination of an Acceptable Insurance Default; (xv) any proposed modification or waiver of any material provision in the related Mortgage Loan documents governing the type, nature or amount of insurance coverage required to be obtained and maintained by the related borrower; (xvi) any approval of any casualty insurance settlements or condemnation settlements, and any determination to apply casualty proceeds or condemnation awards to the reduction of the debt rather than to the restoration of the Mortgaged Property, in each case, to the extent the lender has discretion under the related Mortgage Loan documents; and (xvii) approving annual budgets for the related Mortgaged Property with increases (in excess of 10%) in operating expenses or payments to entities actually known by the Master Servicer to be affiliates of the related borrower (excluding affiliated managers paid at fee rates agreed to at the origination of the related Mortgage Loan or Serviced Whole Loan); provided, further, that, in the event that the Special Servicer or Master Servicer (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 the foregoing matters, or any other matter requiring consent of the Directing Holder prior to the occurrence and continuance of a Control Termination Event in this Agreement (or any matter requiring consultation with the Directing Holder or the Operating Advisor), is necessary to protect the interests of the Certificateholders (or, with respect to any Serviced Whole Loan, the interest of the Certificateholders and the holders of any related Serviced Companion Loan) (as a collective whole (taking into account the subordinate or pari passu nature of any Companion Loans)), the Special Servicer or Master Servicer, as applicable may take any such action without waiting for the Directing Holder’s response (or without waiting to consult with the Directing Holder or the Operating Advisor, as the case may be), provided that the Special Servicer or Master Servicer, as applicable provides the Directing Holder (or the Operating Advisor, if applicable) with prompt written notice following such action including a reasonably detailed explanation of the basis therefor. Similarly, with respect to a Serviced AB Whole Loan, following the occurrence of an extraordinary event with respect to any related Mortgaged Property, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Master Servicer or the Special Servicer, as applicable, may take actions with respect to such Mortgaged Property before obtaining the consent of the Directing Holder if the Master Servicer or the Special Servicer, as applicable, reasonably determines in accordance with the Servicing Standard that failure to take such actions prior to such consent would materially and adversely affect the interest of the Certificateholders and the holders of any related Serviced Companion Loan, as a collective whole (taking into account the subordinate nature of each Serviced Subordinate Companion Loan, and the Master Servicer or the Special Servicer, as applicable, has made a reasonable effort to contact the Directing Holder. Neither the Master Servicer nor the Special Servicer is required to obtain the consent of the Controlling Class Representative for any of the foregoing actions after the occurrence and during the continuance of a Control Termination Event; provided, however, with respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan or an Excluded Loan) or Serviced Whole Loan, if a Control Termination Event has occurred and is continuing, but for so long as no Consultation Termination Event has occurred, the Master Servicer or the Special Servicer will not be required to obtain the consent of the Directing Holder with respect to any of the Major Decisions or Asset Status Reports, but shall consult with the Directing Holder in connection with any Major Decision that it is processing or, in the case of the Special Servicer, any Asset Status Report (or any other matter for which the consent of the Directing Holder would have been required or for which the Directing Holder would have the right to direct the Master Servicer or the Special Servicer if no Control Termination Event had occurred and was continuing) and to consider alternative actions recommended by the Directing Holder in respect of such Major Decision or Asset Status Report (or such other matter). Such consultation will not be binding on the Master Servicer or the Special Servicer. In the event the Master Servicer or the Special Servicer receives no response from the Directing Holder within 10 days following the Master Servicer’s or the Special Servicer’s written request for input (which request is required to include the related Major Decision Reporting Package) on any required consultation, the Master Servicer or the Special Servicer, as applicable will not be obligated to consult with the Directing Holder on the specific matter; provided, however, that the failure of the Directing Holder to respond shall not relieve the Master Servicer or the Special Servicer, as applicable, from consulting with the Directing Holder on any future matters with respect to the applicable Mortgage Loan or Serviced Whole Loan or any other Mortgage Loan. Notwithstanding anything herein to the contrary, with respect to any Servicing Shift Mortgage Loan, the Loan-Specific Directing Holder shall, pursuant to the related Co-Lender Agreement, exercise any consent and consultation rights, and rights to provide direction to the Master Servicer or Special Servicer, of the “Directing Holder” with respect to such Mortgage Loan as provided for in this Agreement until the Servicing Shift Securitization Date. Subject to the terms and conditions of this Section 6.08(a), including, without limitation, the first proviso set forth at the conclusion of the second preceding paragraph, (a) the Special Servicer shall process all requests for any matter that constitutes a Major Decision with respect to any Specially Serviced Mortgage Loan, (b) the Special Servicer shall process all requests for any matter that constitutes a Special Servicer Major Decision with respect to any Non-Specially Serviced Mortgage Loan (other than a Non-Serviced Mortgage Loan) unless the Master Servicer and the Special Servicer have mutually agreed to have the Master Servicer process such request in accordance with the terms and conditions reasonably agreed to by the Master Servicer and Special Servicer, including the Special Servicer’s consent, (c) the Master Servicer shall process all requests for any matter that constitutes a Master Servicer Major Decision with respect to any Non-Specially Serviced Mortgage Loan (other than a Non-Serviced Mortgage Loan) and (d) the Master Servicer shall process all requests for any matter that constitutes a Special Servicer Major Decision with respect to any non-Specially Serviced Mortgage Loan (other than a Non-Serviced Mortgage Loan) if the Master Servicer and the Special Servicer have mutually agreed to have the Master Servicer process such request in accordance with the terms and conditions reasonably agreed to by the Master Servicer and Special Servicer, including the Special Servicer’s consent. Upon receiving a request for any matter that constitutes a Special Servicer Major Decision, the Master Servicer shall forward such request to the Special Servicer and, unless the Master Servicer and the Special Servicer mutually agree that the Master Servicer will process such request in accordance with the terms and conditions reasonably agreed to by the Master Servicer and Special Servicer, including the Special Servicer’s consent, the Special Servicer shall process such request and the Master Servicer will have no further obligation with respect to such request or the related Special Servicer Major Decision. With respect to any Mortgagor request or other action on Non-Specially Serviced Mortgage Loans that is not a Special Servicer Non-Major Decision or a Major Decision, the Master Servicer shall not be required to obtain the consent of or consult with the Special Servicer, any Directing Holder or the Operating Advisor. In addition, with respect to any Mortgage Loan other than an Excluded Loan, for so long as no Control Termination Event has occurred and is continuing, the Directing Holder subject to any rights, if any, of the related Companion Holder to advise the Special Servicer with respect to the related Serviced Whole Loan, pursuant to the terms of the related Co-Lender Agreement, may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan, as the Directing Holder may deem advisable or as to which provision is otherwise made herein; provided that notwithstanding anything herein to the contrary, no such direction or objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or Special Servicer to violate any provision of any Mortgage Loan or related Co-Lender Agreement or mezzanine intercreditor agreement, applicable law, this Agreement, or the REMIC Provisions (and, with respect to a Serviced Whole Loan, subject to the rights of the holders of the related Companion Loan), including without limitation the obligation of the Master Servicer and the Special Servicer to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer, the Trust or the Trustee to liability, or materially expand the scope of the responsibilities of the Master Servicer or the Special Servicer, as applicable, hereunder or cause the Master Servicer or the Special Servicer, as applicable, 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. In the event the Spec