Common use of Certain Powers of the Controlling Holders and Certain Intercreditor Matters Clause in Contracts

Certain Powers of the Controlling Holders and Certain Intercreditor Matters. (a) No Controlling Holder shall owe any fiduciary duty to the Trustee, the Master Servicer, the Special Servicer or any Certificateholder with respect to the related Whole Loan. The related Controlling Holder will not have any liability to the Certificateholders for any action taken, or for refraining from the taking of any action or the giving or withholding of any consent, pursuant to this Agreement, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder confirms its understanding that a Controlling Holder may take or refrain from taking actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that a Controlling Holder may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that a Controlling Holder does not have any duties to the Holders of any Class of Certificates, and that the related Controlling Holder shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against a Controlling Holder or any director, officer, employee, agent or principal thereof for having so acted. (b) Notwithstanding anything in this Agreement to the contrary, with respect to each A/B Whole Loan, the related Controlling Holder, in lieu of the Directing Certificateholder, shall be entitled to exercise all rights of the Directing Certificateholder under this Agreement with respect to the related A/B Whole Loan, as applicable, and any references to the Directing Certificateholder in this Agreement relating to actions permitted to be taken only with the consent of the Directing Certificateholder with respect to such A/B Whole Loan shall be deemed to be references to the related Controlling Holder; provided, however, (i) the Directing Certificateholder shall also have the right to receive all reports and notices under this Agreement (which shall not be an expense of the related Controlling Holder), (ii) the Directing Certificateholder shall also have the right to consult with the Special Servicer (on a non-binding basis) regarding such A/B Whole Loan and (iii) the Directing Certificateholder (and not the related Controlling Holder) shall be entitled to exercise the Purchase Option set forth in Section 3.18(c) with respect to such A/B Whole Loan. In addition, the applicable Controlling Holder shall have any rights, whether or not additional, that are specified in the related Intercreditor Agreement. In addition, if a Control Appraisal Period exists with respect to an A/B Whole Loan, then the related Controlling Holder shall be the Directing Certificateholder who shall be authorized to exercise any of its approval and consent rights and powers provided for in Section 3.23, this Section 3.29 or elsewhere in this Agreement or the related Intercreditor Agreement with respect to such A/B Whole Loan, subject to the provisions of the related Intercreditor Agreement; provided, however, the related Note B Holder shall nevertheless retain the right to receive distributions and (if the Note B Holder is not the related Borrower or an affiliate thereof) notices and reports under this Agreement. (c) Within five Business Days of receipt of written notice that a new related Controlling Holder has been selected, the Trustee shall deliver notice to the Master Servicer and the Special Servicer, of such related Controlling Holder's identity. (d) With respect to each A/B Whole Loan, notwithstanding anything to the contrary contained herein, the related Controlling Holder shall have the right to cure monetary and non-monetary defaults by the related Borrower as provided in the related Intercreditor Agreement.

Certain Powers of the Controlling Holders and Certain Intercreditor Matters. (a) No The related Controlling Holder shall not owe any fiduciary duty to the Trustee, the Master Servicer, the Special Servicer or any Certificateholder with respect to (other than in the related Whole case of the CP Component Mortgage Loan, the holders of the CP Controlling Class). The related Controlling Holder will not have any liability to the Certificateholders (other than in the case of the CP Component Mortgage Loan, the holders of the CP Controlling Class) and, in the case of the CP Component Mortgage Loan, shall have no liability to any holder of the CP Controlling Class for any action taken, or for refraining from the taking of any action or the giving or withholding of any consent, pursuant to this Agreement, or for errors in judgment; provided, however, that with respect to the holders of the CP Controlling Class, the related Controlling Holder shall not be protected against any liability that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of its duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that a the related Controlling Holder may take or refrain from taking actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that a the related Controlling Holder may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that a the CP Controlling Holder may act solely in the interests of the Holders of the CP Controlling Class, that the related Controlling Holder does not have any duties to the Holders of any Class of Certificates (other than in the case of the CP Controlling Holder, the holders of the CP Controlling Class), that the CP Controlling Holder may take actions or refrain from taking any actions in good faith that favor the interests of the Holders of the CP Controlling Class over the interests of the Holders of one or more other Classes of Certificates, and that the related Controlling Holder shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against a the related Controlling Holder or any director, officer, employee, agent or principal thereof for having so acted. (b) Notwithstanding anything in this Agreement to the contrary, with respect to each A/B Whole Loanso long as no related Control Appraisal Event exists, the related Controlling Holder, in lieu of the Directing Certificateholder, shall be entitled to exercise all rights of the Directing Certificateholder under this Agreement with respect to the related A/B Whole CP Component Mortgage Loan, the Mission City Corporate Center Mortgage Loan and Regents Square I & II Mortgage Loan, as applicable, and any references to the Directing Certificateholder in this Agreement relating to actions permitted to be taken only with the consent of the Directing Certificateholder with respect to such A/B Whole Mortgage Loan shall be deemed to be references to the related Controlling Holder; provided, however, that (i) the Directing Certificateholder shall also have the right to receive all reports and notices under this Agreement (which shall not be an expense of the related Controlling Holder), (ii) the Directing Certificateholder shall also have the right to consult with the Special Servicer (on a non-binding basis) regarding such A/B Whole Loan and Mortgage Loan, (iii) the Directing Certificateholder (and not the related Controlling Holder) shall be entitled to exercise the Purchase Option set forth in Section 3.18(c) with respect to such A/B Whole Loan. In addition, Mortgage Loan and (iv) the applicable related Controlling Holder shall have any rights, whether or not additional, that are specified be entitled to terminate the Special Servicer except as set forth in the related Intercreditor AgreementSection 3.23(b). In addition, if a Control Appraisal Period exists with respect to an A/B Whole CP Component Mortgage Loan, the Mission City Corporate Center Mortgage Loan and Regents Square I & II Mortgage Loan, then the related Controlling Holder shall be the Directing Certificateholder who shall not be authorized to exercise any of its approval and consent rights and powers provided for in Section 3.23, this Section 3.29 3.32 or elsewhere in this Agreement or the related Intercreditor Agreement with respect to such A/B Whole LoanMortgage Loan and the Directing Certificateholder shall be entitled to exercise all such rights and powers, subject to the provisions of the related Intercreditor Agreement; provided, however, that the related Note B Controlling Holder shall nevertheless retain the right to receive distributions and (if the Note B Holder is not the related Borrower or an affiliate thereof) distributions, notices and reports under this Agreement. (c) Within five Business Days of receipt of written notice that a new related Controlling Holder has been selected, the Trustee shall deliver notice to the Master Servicer and the Special Servicer, of such related Controlling Holder's identity. (d) With respect to each A/B Whole of the CP Component Mortgage Loan, the Mission City Corporate Center Mortgage Loan and Regents Square I & II Mortgage Loan, notwithstanding anything to the contrary contained herein: (i) Subject to clause (ii) below, in the event that the related Borrower fails to make any payment on the CP Component Mortgage Loan, the Mission City Corporate Center Mortgage Loan or the Regents Square I & II Mortgage Loan, as applicable, by the end of the applicable grace period (the "Grace Period") for such payment permitted under the applicable Mortgage Loan documents (a "Monetary Default") and such Mortgage Loan is not a Specially Serviced Loan, provided that, in the case of the Mission City Corporate Center Mortgage Loan and Regents Square I & II Mortgage Loan, the related B Noteholder is not the related Borrower or an Affiliate thereof, the Holder or Holders of more than 50% of the aggregate Certificate Balance of the then CP Controlling Class (with respect to the CP Component Mortgage Loan) or the related Controlling Holder (with respect to the Mission City Corporate Center Mortgage Loan and Regents Square I & II Mortgage Loan) shall have the right right, but not the obligation, to cure monetary such Monetary Default (a "Cure") within five (5) Business Days after the expiration of the Grace Period and nonat no other times (the "Monetary Default Cure Period"). At the time such cure payment is made, the Holder or Holders of more than 50% of the aggregate Certificate Balance of the then CP Controlling Class or the related Controlling Holder, as applicable, shall pay or reimburse the Trust Fund for all unreimbursed Advances, unpaid Advance Interest, unpaid fees to the Master Servicer, the Special Servicer or the Trustee, and Additional Trust Expenses borne by the Trust Fund relating to the default on the related Mortgage Loan. So long as a Monetary Default exists for which a cure payment permitted hereunder is made, such Monetary Default shall not be treated as a Servicing Transfer Event with respect to such Mortgage Loan; provided that such limitation shall not prevent the Trustee, on behalf of the Trust Fund, from collecting default interest or late charges from the related Borrower or exercising any other right or remedy. (ii) Notwithstanding anything to the contrary contained in this Section 3.32, the right of the Holder or Holders of more than 50% of the aggregate Certificate Balance of the then CP Controlling Class or the related Controlling Holder, as applicable, to cure a Monetary Default or Non-monetary defaults Monetary Default shall be limited to three (3) consecutive Cures and limited to six (6) Cures (whether or not for consecutive months) for the life of the related Mortgage Loan. (iii) No action taken by the Holder or Holders of more than 50% of the aggregate Certificate Balance of the then CP Controlling Class or the related Controlling Holder, as applicable, in accordance with this Agreement shall excuse performance by the related Borrower of its obligations under the Mortgage Loan documents and the rights of the Trustee, on behalf of the Trust Fund, under the related Mortgage Loan documents shall not be waived or prejudiced by virtue of the actions of such Holder or Holders or related Controlling Holder, as applicable, under this Agreement. (iv) In the event that an Event of Default (other than a Monetary Default) occurs and is continuing under the related Mortgage Loan documents (a "Non-Monetary Default"), provided that, in the case of the Mission City Corporate Center Mortgage Loan and Regents Square I & II Mortgage Loan, the related Intercreditor AgreementB Noteholder is not the related Borrower or an Affiliate thereof, the Holder or Holders of more than 50% of the aggregate Certificate Balance of the then CP Controlling Class (with respect to the CP Component Mortgage Loan) or the related Controlling Holder (with respect to the Mission City Corporate Center Mortgage Loan and Regents Square I & II Mortgage Loan) shall have the right, but not the obligation, to cure such Non-Monetary Default within the same period of time as the related Borrower under the related Mortgage Loan documents to cure such Non-Monetary Default; provided, however, that if such Non-Monetary Default is susceptible of cure but cannot reasonably be cured within such period and if curative action was promptly commenced and is being diligently pursued by such Holder or Holders or related Controlling Holder, as applicable, such Holder or Holders or related Controlling Holder, as applicable, shall be given an additional period of time as is reasonably necessary to enable such Holder or Holders or related Controlling Holder, as applicable, in the exercise of due diligence to cure such Non-Monetary Default for so long as (i) such Holder or Holders or related Controlling Holder, as applicable, diligently and expeditiously proceeds to cure such Non-Monetary Default, (ii) such Holder or Holders or related Controlling Holder, as applicable, makes all cure payments that it is permitted to make in accordance with the terms and provisions of clause (i) above, (iii) such additional period of time does not exceed thirty (30) days, (iv) such Non-Monetary Default is not caused by a bankruptcy, insolvency or assignment for the benefit of creditors of the related Borrower or during such period of time that such Holder or Holders or related Controlling Holder, as applicable, has to cure a Non-Monetary Default in accordance with this clause (iv) (the "Non-Monetary Default Cure Period"), a bankruptcy, insolvency or assignment for the benefit of creditors of the related Borrower does not occur and (v) during such Non-Monetary Default Cure Period, there is no material adverse effect on the related Borrower or the related Mortgaged Property or the value of the related Mortgage Loan as a result of such Non-Monetary Default or the attempted cure. Such Holder or Holders or related Controlling Holder, as applicable, shall not contact the related Borrower in order to effect any cures under this clause (iv) without the prior written consent of the Trustee. (v) Notwithstanding anything to the contrary contained herein, in no event shall any Non-Monetary Cure Period extend beyond the date that is five years prior to the Rated Final Distribution Date.

Certain Powers of the Controlling Holders and Certain Intercreditor Matters. (a) No Controlling Holder shall owe any fiduciary duty to the Trustee, the Master Servicer, the Special Servicer or any Certificateholder with respect to the related A/B Whole Loan. The related Controlling Holder will not have any liability to the Certificateholders for any action taken, or for refraining from the taking of any action or the giving or withholding of any consent, pursuant to this Agreement, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder confirms its understanding that a the related Controlling Holder may take or refrain from taking actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that a the related Controlling Holder may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that a the related Controlling Holder does not have any duties to the Holders of any Class of Certificates, and that the related Controlling Holder shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against a the related Controlling Holder or any director, officer, employee, agent or principal thereof for having so acted. (b) Notwithstanding anything in this Agreement to the contrary, with respect to each A/B Whole Loan, the related Controlling Holder, in lieu of the Directing Certificateholder, shall be entitled to exercise all rights of the Directing Certificateholder under this Agreement with respect to the related A/B Whole Loan, as applicable, and any references to the Directing Certificateholder in this Agreement relating to actions permitted to be taken only with the consent of the Directing Certificateholder with respect to such A/B Whole Loan shall be deemed to be references to the related Controlling Holder; provided, however, (i) the Directing Certificateholder shall also have the right to receive all reports and notices under this Agreement (which shall not be an expense of the related Controlling Holder), (ii) the Directing Certificateholder shall also have the right to consult with the Special Servicer (on a non-binding basis) regarding such A/B Whole Loan and (iii) the Directing Certificateholder (and not the related Controlling Holder) shall be entitled to exercise the Purchase Option set forth in Section 3.18(c) with respect to such A/B Whole Loan. In addition, the applicable Controlling Holder shall have any rights, whether or not additional, that are specified in the related Intercreditor Agreement. In addition, if a Control Appraisal Period exists with respect to an A/B Whole Loan, then the related Controlling Holder shall be the Directing Certificateholder who shall be authorized to exercise any of its approval and consent rights and powers provided for in Section 3.23, this Section 3.29 3.30 or elsewhere in this Agreement or the related Intercreditor Agreement with respect to such A/B Whole Loan, subject to the provisions of the related Intercreditor Agreement; provided, however, the related Note B Holder shall nevertheless retain the right to receive distributions and (if the Note B Holder is not the related Borrower or an affiliate thereof) notices and reports under this Agreement. (c) Within five Business Days of receipt of written notice that a new related Controlling Holder has been selected, the Trustee shall deliver notice to the Master Servicer and the Special Servicer, of such related Controlling Holder's identity. (d) With respect to each A/B Whole Loan, notwithstanding anything to the contrary contained herein, the related Controlling Holder shall have the right to cure monetary and non-monetary defaults by the related Borrower as provided in the related Intercreditor Agreement.

Certain Powers of the Controlling Holders and Certain Intercreditor Matters. (a) No The related Controlling Holder shall not owe any fiduciary duty to the Trustee, the Master Servicer, the Special Servicer or any Certificateholder with respect to the related Whole LoanCertificateholder. The related Controlling Holder will not have any liability to the Certificateholders for any action taken, or for refraining from the taking of any action or the giving or withholding of any consent, pursuant to this Agreement, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder confirms its understanding that a the related Controlling Holder may take or refrain from taking actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that a the related Controlling Holder may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that a the related Controlling Holder does not have any duties to the Holders of any Class of Certificates, and that the related Controlling Holder shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against a the related Controlling Holder or any director, officer, employee, agent or principal thereof for having so acted. (b) Notwithstanding anything in this Agreement to the contrary, with respect to each A/B Serviced Whole Loan, the related Controlling Holder, in lieu of the Directing Certificateholder, shall be entitled to exercise all rights of the Directing Certificateholder under this Agreement with respect to the related A/B Serviced Whole Loan, as applicable, and any references to the Directing Certificateholder in this Agreement relating to actions permitted to be taken only with the consent of the Directing Certificateholder with respect to such A/B Serviced Whole Loan shall be deemed to be references to the related Controlling Holder; provided, however, that (i) the Directing Certificateholder shall also have the right to receive all reports and notices under this Agreement (which shall not be an expense of the related Controlling Holder), (ii) the Directing Certificateholder shall also have the right to consult with the Special Servicer (on a non-binding basis) regarding such A/B Serviced Whole Loan and Loan, (iii) the Directing Certificateholder (and not the related Controlling Holder) shall be entitled to exercise the Purchase Option set forth in Section 3.18(c) with respect to such A/B Serviced Whole LoanLoan and (iv) the related Controlling Holder shall not be entitled to terminate the Special Servicer. In addition, the applicable Controlling Holder shall have any rights, whether or not additional, that are specified in the related Intercreditor Agreement. In addition, if a Control Appraisal Period exists with respect to an A/B Whole Loan, then the related Controlling Holder shall be the Directing Certificateholder who shall be authorized to exercise any of its approval and consent rights and powers provided for in Section 3.23, this Section 3.29 or elsewhere in this Agreement or the related Intercreditor Agreement with respect to such A/B Whole Loan, subject to the provisions of the related Intercreditor Agreement; provided, however, the related Note B Holder shall nevertheless retain the right to receive distributions and (if the Note B Holder is not the related Borrower or an affiliate thereof) notices and reports under this Agreement. (c) Within five Business Days of receipt of written notice that a new related Controlling Holder has been selected, the Trustee shall deliver notice to the Master Servicer and the Special Servicer, of such related Controlling Holder's identity. (d) With respect to each A/B Serviced Whole Loan, notwithstanding anything to the contrary contained herein, the related Controlling Holder shall have the right to cure monetary and non-monetary defaults by the related Borrower as provided in the related Intercreditor Agreement.

Certain Powers of the Controlling Holders and Certain Intercreditor Matters. (a) No With respect to each A/B Whole Loan, the related Controlling Holder shall not owe any fiduciary duty to the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer or any Certificateholder with respect to the related A/B Whole Loan. The related Controlling Holder will not have any liability to the Certificateholders for any action taken, or for refraining from the taking of any action or the giving or withholding of any consent, pursuant to this Agreement, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder confirms its understanding that a the related Controlling Holder may take or refrain from taking actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that a the related Controlling Holder may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that a the related Controlling Holder does not have any duties to the Holders of any Class of Certificates, and that the related Controlling Holder shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against a the related Controlling Holder or any director, officer, employee, agent or principal thereof for having so acted. (b) Notwithstanding anything in this Agreement to the contrary, with respect to each A/B Whole Loan, the related Controlling Holder, in lieu of the Directing Certificateholder, shall be entitled to exercise all rights of the Directing Certificateholder under this Agreement with respect to the related such A/B Whole Loan, as applicable, Loan and any references to the Directing Certificateholder in this Agreement relating to actions permitted to be taken only with the consent of the Directing Certificateholder with respect to such A/B Whole Loan shall be deemed to be references to the related Controlling Holder; provided, however, (i) the Directing Certificateholder shall also have the right to receive all reports and notices under this Agreement (which shall not be an expense of the related Controlling Holder), (ii) the Directing Certificateholder shall also have the right to consult with the Special Servicer (on a non-binding basis) regarding such A/B Whole Loan and (iii) the Directing Certificateholder (and not the related Controlling Holder) shall be entitled to exercise the Purchase Option set forth in Section 3.18(c) with respect to such A/B Whole Loan. In addition, the applicable Controlling Holder shall have any rights, whether or not additional, that are specified in the related Intercreditor Agreement. In addition, if a Control Appraisal Period exists with respect to an A/B Whole Loan, then the related Controlling Holder shall be the Directing Certificateholder who shall be authorized to exercise any of its approval and consent rights and powers provided for in Section 3.23, this Section 3.29 3.30 or elsewhere in this Agreement or the related Intercreditor Agreement with respect to such A/B Whole Loan, subject to the provisions of the related Intercreditor Agreement; provided, however, the related Note B Holder shall nevertheless retain the right to receive distributions and (if the Note B Holder is not the related Borrower or an affiliate thereof) notices and reports under this Agreement. (c) Within five Business Days of receipt of written notice that a new related Controlling Holder has been selected, the Trustee shall deliver notice to the Master Servicer and the Special Servicer, of such related Controlling Holder's identity. (d) With respect to each A/B Whole Loan, notwithstanding anything to the contrary contained herein, the related Controlling Holder shall have the right to cure monetary and non-monetary defaults by the related Borrower as provided in the related Intercreditor Agreement.