Common use of Controlling Noteholder and Consulting Parties Clause in Contracts

Controlling Noteholder and Consulting Parties. (a) The Controlling Noteholder shall be entitled to advise the Lead Special Servicer with respect to the Mortgage Loan as to all Major Decisions as set forth in this Section 5. In addition, except as set forth in, and in any event subject to, Section 5(b) and the subsequent paragraphs of this Section 5(a), (1) the Lead Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless the Lead Master Servicer and the Lead Special Servicer mutually agree that the Lead Master Servicer shall take such action, subject to the consent of the Lead 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 Lead Special Servicer receives the information from the Lead Master Servicer) to analyze and make a recommendation regarding such Major Decision (provided that if the Lead Special Servicer does not consent, or notify the Lead Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Lead Special Servicer shall be deemed to have consented to such Major Decision), and (2) the Lead Special Servicer shall not be permitted to take, or to consent to the Lead Master Servicer’s taking, any of the actions constituting a Major Decision as to which either (x) if the Note B-1 Holder or the Note A-4-1 Holder is the Controlling Noteholder, such Controlling Noteholder 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 related Major Decision Reporting Package from the Lead Special Servicer (provided that if such written objection has not been received by the Lead Special Servicer within such ten (10) Business Day period or twenty (20) day period, the Controlling Noteholder shall be deemed to have consented to such Major Decision), (y) that, if such Major Decision also constitutes an Extraordinary Major Decision (other than when the Note A-4-1 Holder is the Controlling Noteholder), has not been consented to or approved (or been deemed to have consented to or approved) by the Required Decision-Eligible Note A Holders in accordance with Section 5(d) or (z) that, if such Major Decision also constitutes a Majority Decision (other than when the Note B-1 Holder or the Note A-4-1 Holder is the Controlling Noteholder), has not been consented to or approved (or been deemed to have consented to or approved) by the Required Decision-Eligible Note A Holders in accordance with Section 5(e). Furthermore, the Controlling Noteholder may direct the Lead Special Servicer to take, or to refrain from taking, such other actions with respect to the Mortgage Loan as such party may reasonably deem advisable or as to which provision is otherwise made herein or in the Servicing Agreement (but this shall not be construed to limit the rights of other Noteholders under the other provisions of this subsection or under Section 5(d) or Section 5(e)). In addition, prior to taking, or consenting to the Lead Master Servicer’s taking of, any Major Decision, the Lead Special Servicer shall consult (on a non-binding basis) with all applicable Consulting Parties in connection with such Major Decision with respect to the Mortgage Loan and consider alternative actions recommended by such Consulting Parties; provided that each such consultation is not binding on the Lead Special Servicer. The Lead Special Servicer shall provide all information reasonably requested by any applicable Consulting Party and in the Lead Special Servicer's possession that is necessary in order for such Consulting Party to exercise its consultation rights set forth in the first sentence of this paragraph. The period when the Lead Special Servicer engages in such non-binding consultation with any Consulting Party need not extend past ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after such Consulting Party’s receipt of the related Major Decision Reporting Package from the Lead Special Servicer. With respect to each Major Decision regarding the Mortgage Loan, the Lead Special Servicer shall provide the related Major Decision Reporting Package to (i) the Controlling Noteholder simultaneously with the Lead Special Servicer’s request for the Controlling Noteholder’s consent to such Major Decision, provided that the Note B-1 Holder or the Note A-4-1 Holder is the Controlling Noteholder, (ii) each Decision-Eligible Note A Holder in accordance with Section 5(d) or Section 5(e) (as applicable) simultaneously with the Lead Special Servicer’s request for the Required Decision-Eligible Note A Holders’ consent to such Major Decision under such Section 5(d) or Section 5(e) (as applicable), provided that either (x) the Note A-1 Holder or the Note A-2 Holder is the Controlling Noteholder or (y) such Major Decision is also an Extraordinary Major Decision and the Note A-4-1 Holder is not the Controlling Noteholder; and (iii) to each applicable Consulting Party simultaneously with the Lead Special Servicer’s request for such Consulting Party’s input regarding such Major Decision. Notwithstanding anything in this Agreement to the contrary, if the Lead Special Servicer or Lead Master Servicer (if the Lead 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 matter requiring the consent of, or consultation with, the Controlling Noteholder, the Decision-Eligible Note A Holders or the applicable Consulting Parties, is necessary to protect the interests of the Noteholders (as a collective whole as if the Noteholders constituted a single lender (and taking into account the subordinate nature of Note B)), the Lead Special Servicer or Lead Master Servicer, as applicable, may take any such action without waiting for the responses of the Controlling Noteholder, the Decision-Eligible Note A Holders or any Consulting Party (or, in the case of the Lead Master Servicer, the response of the Lead Special Servicer). No direction, objection, advice or consultation on the part of the Controlling Noteholder, any applicable Decision-Eligible Note A Holder(s) or any applicable Consulting Party contemplated by this Agreement may require or cause the Lead Master Servicer or the Lead Special Servicer to violate the terms of the Mortgage Loan, any provision of any related Loan Documents, any mezzanine intercreditor agreement (if any mezzanine debt exists), applicable law, this Agreement or the REMIC Provisions, including without limitation each of the Lead Master Servicer’s and the Lead Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose any Noteholder or any party to this Agreement or the Servicing Agreement or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or cause any REMIC that holds any interest in a Note to fail to qualify as a REMIC or any grantor trust that holds an interest in a Note to fail to qualify as a grantor trust for federal income tax purposes, or result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions, or materially expand the scope of the Lead Master Servicer’s or the Lead Special Servicer’s responsibilities under this Agreement or the Servicing Agreement. If the Lead Special Servicer or Lead Master Servicer, as applicable, determines that a refusal to consent by the Controlling Noteholder or (if applicable) the Required Decision-Eligible Note A Holders or any advice from any applicable Controlling Noteholder, Decision-Eligible Note A Holder or Consulting Party would otherwise cause the Lead Special Servicer or Lead Master Servicer, as applicable, to violate the terms of any Loan Documents, any related mezzanine intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Lead Special Servicer or Lead Master Servicer, as applicable, shall disregard such refusal to consent or advice and notify in writing the Controlling Noteholder, the Decision-Eligible Note A Holders and the applicable Consulting Parties and such other Persons as the Servicing Agreement may designate. The taking of, or refraining from taking, any action by the Lead Master Servicer or the Lead Special Servicer in accordance with the approval(s) of the Controlling Noteholder, the Required Decision-Eligible Note A Holders (if applicable) or the recommendation of any applicable Consulting Party that does not violate the terms of any Loan Documents, any related mezzanine intercreditor agreement, any law, the REMIC Provisions or the Servicing Standard or any other provisions of this Agreement or the Servicing Agreement (including the consent and approval rights of the Controlling Noteholder and/or the Decision-Eligible Note A Holders as otherwise set forth herein), will not result in any liability on the part of the Lead Master Servicer or the Lead Special Servicer. The Controlling Noteholder will have no liability to any other Noteholder, or any Person who owns an interest in any such other Notes, for any action taken, or for refraining from the taking of any action, pursuant to this Agreement or the Servicing Agreement, or for error in judgment. The Consulting Parties shall have no liability to any Noteholder, or any Person who owns an interest in any Note, for any action taken, or for refraining from the taking of any action, pursuant to this Agreement or the Servicing Agreement, or for errors in judgment.