Common use of Designation of Servicer by the Controlling Class Clause in Contracts

Designation of Servicer by the Controlling Class. The Controlling Class Representative may, during such time as the Notes are Specially Serviced Notes, at any time and from time to time designate a Person (other than the Indenture Trustee) to replace any existing Servicer or any Servicer that has resigned or otherwise ceased to serve as Servicer, such successor servicer to be reasonably acceptable to the Indenture Trustee. The Controlling Class Representative shall so designate a Person (the “Designated Person”) to serve as successor servicer by the delivery to the Indenture Trustee, the proposed successor servicer and the existing servicer of a written notice stating such designation. The Indenture Trustee shall, promptly after receiving any such notice, deliver to the Rating Agencies an executed Notice and Acknowledgment in the form of Exhibit C. The Designated Person shall become the Servicer on the date as of which the following condition shall be satisfied: (i) the prior written notice to the Rating Agencies by the Indenture Trustee (at the direction of the Controlling Class Representative); (ii) the Issuer’s receipt of an Acknowledgment of Proposed Servicer in the form of Exhibit D, executed by the Designated Person; and (iii) an Opinion of Counsel (which shall not be an expense of the Indenture Trustee) substantially to the effect that (A) the designation of the Designated Person to serve as Servicer is in compliance with this Section 4.06, (B) the Designated Person is validly existing and in good standing under the laws of the jurisdiction of its organization, (C) the Acknowledgment of Proposed Servicer has been duly authorized, executed and delivered by the Designated Person and (D) upon the execution and delivery of the Acknowledgment of Proposed Servicer, the Designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, that this Agreement shall be enforceable against the Designated Person in accordance with its terms. Any existing Servicer shall be deemed to have been terminated simultaneously with such Designated Person’s becoming the Servicer hereunder; provided that (i) the terminated Servicer shall be entitled to receive, in connection with, and upon the effective date of, its termination, payment out of the Collection Account of all of its accrued and unpaid Servicing Fee, Other Servicing Fees earned pursuant to Section 2.04 and reimbursement from the successor servicer of (x) all outstanding Debt Service Advances and Servicing Advances made by the terminated Servicer and all unpaid Advance Interest accrued on such outstanding Debt Service Advances and Servicing Advances (in which case the successor servicer shall be deemed to have made such Debt Service Advances and Servicing Advances at the same time that the terminated Servicer had actually made them) and (y) any outstanding Additional Issuer Expenses previously made or incurred by the terminated Servicer and any other amounts which the terminated Servicer is entitled to receive and which remain unpaid or unreimbursed, and (ii) such Servicer shall continue to be entitled to the benefits of the final sentence of Section 4.03, Section 4.04, Section 4.06, Section 5.01, Section 5.02 and Section 6.02, notwithstanding any such resignation or termination; and provided, further, that the terminated Servicer shall continue to be obligated to pay and entitled to receive all other amounts accrued or owing by or to it under this Agreement or under any of the other Transaction Documents on or prior to the effective date of such termination. Such terminated Servicer shall cooperate with the Indenture Trustee and the replacement Servicer in effecting the transfer of the terminated Servicer’s responsibilities and rights hereunder to its successor, including the transfer within two (2) Business Days to the replacement Servicer for administration by it of all cash amounts that at the time are or should have been credited by the Servicer to the Impositions and Insurance Reserve Account or any Reserve Account or should have been delivered to the Servicer or that are thereafter received by or on behalf of it with respect to the Notes. The reasonable out-of-pocket costs and expenses of any such transfer shall in no event be paid by the Indenture Trustee or the Servicer, and instead shall be paid by the Controlling Class Representative or the holders (or, if applicable, the Note Owners) of Notes of the Class that voted to remove the terminated Servicer, as such parties may agree; provided, however, that if the Controlling Class Representative (or, if applicable, the Note Owners) does not reimburse the Indenture Trustee or the Servicer within thirty (30) days of demand therefor, such expenses shall be reimbursed as Additional Issuer Expenses.

Designation of Servicer by the Controlling Class. The Controlling Class Representative may, during such time as the Notes are Specially Serviced Notes, at any time and from time to time designate a Person (other than the Indenture Trustee) to replace any existing Servicer or any Servicer that has resigned or otherwise ceased to serve as Servicer, such successor servicer to be reasonably acceptable to the Indenture Trustee. The Controlling Class Representative shall so designate a Person (the “Designated Person”) to serve as successor servicer by the delivery to the Indenture Trustee, the proposed successor servicer and the existing servicer of a written notice stating such designation. The Indenture Trustee shall, promptly after receiving any such notice, deliver to the Rating Agencies an executed Notice and Acknowledgment in the form of Exhibit C. The Designated Person shall become the Servicer on the date as of which the following condition shall be satisfied: : (i) the prior written notice to the Rating Agencies by the Indenture Trustee (at the direction of the Controlling Class Representative); (ii) the Issuer’s receipt of an Acknowledgment of Proposed Servicer in the form of Exhibit D, executed by the Designated Person; and (iii) an Opinion of Counsel (which shall not be an expense of the Indenture Trustee) substantially to the effect that (A) the designation of the Designated Person to serve as Servicer is in compliance with this Section 4.06, (B) the Designated Person is validly existing and in good standing under the laws of the jurisdiction of its organization, (C) the Acknowledgment of Proposed Servicer has been duly authorized, executed and delivered by the Designated Person and (D) upon the execution and delivery of the Acknowledgment of Proposed Servicer, the Designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, that this Agreement shall be enforceable against the Designated Person in accordance with its terms. Any existing Servicer shall be deemed to have been terminated simultaneously with such Designated Person’s becoming the Servicer hereunder; provided that (i) the terminated Servicer shall be entitled to receive, in connection with, and upon the effective date of, its termination, payment out of the Collection Account of all of its accrued and unpaid Servicing Fee, Other Servicing Fees earned pursuant to Section 2.04 and reimbursement from the successor servicer of (x) all outstanding Debt Service Advances and Servicing Advances made by the terminated Servicer and all unpaid Advance Interest accrued on such outstanding Debt Service Advances and Servicing Advances (in which case the successor servicer shall be deemed to have made such Debt Service Advances and Servicing Advances at the same time that the terminated Servicer had actually made them) and (y) any outstanding Additional Issuer Expenses previously made or incurred by the terminated Servicer and any other amounts which the terminated Servicer is entitled to receive and which remain unpaid or unreimbursed, and (ii) such Servicer shall continue to be entitled to the benefits of the final sentence of Section 4.03, Section 4.04, Section 4.06, Section 5.01, Section 5.02 and Section 6.02, notwithstanding any such resignation or termination; and provided, further, that the terminated Servicer shall continue to be obligated to pay and entitled to receive all other amounts accrued or owing by or to it under this Agreement or under any of the other Transaction Documents on or prior to the effective date of such termination. Such terminated Servicer shall cooperate with the Indenture Trustee and the replacement Servicer in effecting the transfer of the terminated Servicer’s responsibilities and rights hereunder to its successor, including the transfer within two (2) Business Days to the replacement Servicer for administration by it of all cash amounts that at the time are or should have been credited by the Servicer to the Impositions and Insurance Reserve Account or any Reserve Account or should have been delivered to the Servicer or that are thereafter received by or on behalf of it with respect to the Notes. The reasonable out-of-pocket costs and expenses of any such transfer shall in no event be paid by the Indenture Trustee or the Servicer, and instead shall be paid by the Controlling Class Representative or the holders (or, if applicable, the Note Owners) of Notes of the Class that voted to remove the terminated Servicer, as such parties may agree; provided, however, that if the Controlling Class Representative (or, if applicable, the Note Owners) does not reimburse the Indenture Trustee or the Servicer within thirty (30) days of demand therefor, such expenses shall be reimbursed as Additional Issuer Expenses.

Designation of Servicer by the Controlling Class. The Controlling Class Representative may, during such time as the Notes are Specially Serviced Notes, at any time and from time to time designate a Person (other than the Indenture Trustee) to replace any existing Servicer or any Servicer that has resigned or otherwise ceased to serve as Servicer, such successor servicer Servicer to be reasonably acceptable to the Indenture Trustee. The Controlling Class Representative shall so designate a Person (the “Designated Person”) to so serve as successor servicer Servicer by the delivery to the Indenture Trustee, the proposed successor servicer Servicer and the existing servicer Servicer of a written notice stating such designation. The Indenture Trustee shall, promptly after receiving any such notice, deliver to the Rating Agencies an executed Notice and Acknowledgment in the form of attached hereto as Exhibit C. A. The Designated designated Person shall become the Servicer on the date as of which the following condition Indenture Trustee shall be satisfiedhave received: (i) the prior written notice to the Rating Agencies by the Indenture Trustee (at the direction of the Controlling Class Representative)Agency Confirmation; (ii) the Issuer’s receipt of an Acknowledgment of Proposed Servicer in the form of attached hereto as Exhibit DB, executed by the Designated designated Person; and (iii) an Opinion of Counsel (which shall not be an expense of the Indenture Trustee) substantially to the effect that (A) the designation of the Designated such Person to serve as Servicer is in compliance with this Section 4.06, (B) the Designated designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (C) the Acknowledgment of Proposed Servicer has been duly authorized, executed and delivered by the Designated designated Person and (D) upon the execution and delivery of the Acknowledgment of Proposed Servicer, the Designated designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, that this Agreement shall be enforceable against the Designated designated Person in accordance with its terms. Any existing Servicer shall be deemed to have been terminated simultaneously with such Designated designated Person’s becoming the Servicer hereunder; provided that (i) the terminated Servicer shall be entitled to receive, in connection with, and upon the effective date of, its termination, payment out of the Collection Account of all of its accrued and unpaid Servicing FeeFees, Other Special Servicing Fees, Liquidation Fees, Workout Fees and any other fees earned pursuant to Section 2.04 and reimbursement from the successor servicer Servicer of (x) all outstanding Debt Service Advances and Servicing Advances made by the terminated Servicer and all unpaid Advance Interest accrued on such outstanding Debt Service Advances and Servicing Advances (in which case the successor servicer Servicer shall be deemed to have made such Debt Service Advances and Servicing Advances at the same time that the terminated Servicer had actually made them) and (y) any outstanding Additional Issuer Expenses previously made or incurred by the terminated Servicer and any other amounts which the terminated Servicer is entitled to receive and which remain unpaid or unreimbursedServicer, and (ii) such Servicer shall continue to be entitled to the benefits of the final sentence of Section 4.03, Section 4.04, Section 4.06, Section 5.01, Section 5.02 and Section 6.02, notwithstanding any such resignation or termination; and provided, further, that the terminated Servicer shall continue to be obligated to pay and entitled to receive all other amounts accrued or owing by or to it under this Agreement or under any of the other Transaction Documents on or prior to the effective date of such termination. Such terminated Servicer shall cooperate with the Indenture Trustee and the replacement Servicer in effecting the transfer of the terminated Servicer’s responsibilities and rights hereunder to its successor, including the transfer within two (2) Business Days to the replacement Servicer for administration by it of all cash amounts that at the time are or should have been credited by the Servicer to the Impositions and Insurance Reserve Sub-Account or any Reserve Sub-Account or should have been delivered to the Servicer or that are thereafter received by or on behalf of it with respect to the Notes. The reasonable out-of-pocket costs and expenses of any such transfer shall in no event be paid by the Indenture Trustee or the Servicer, and instead shall be paid by the successor Servicer, the Controlling Class Representative or the holders (or, if applicable, the Note Owners) of Notes of the Class that voted to remove the terminated Servicer, as such parties may agree; provided, however, that if the Controlling Class Representative (or, if applicable, the Note Owners) does not reimburse the Indenture Trustee or the Servicer within thirty (30) days of demand therefor, such expenses shall be reimbursed as Additional Issuer Expenses.

Designation of Servicer by the Controlling Class. The Controlling Class Representative may, during such time as the Notes are Specially Serviced Notes, at any time and from time to time designate a Person (other than the Indenture Trustee) to replace any existing Servicer or any Servicer that has resigned or otherwise ceased to serve as Servicer, such successor servicer to be reasonably acceptable to the Indenture Trustee. The Controlling Class Representative shall so designate a Person (the “Designated Person”) to serve as successor servicer by the delivery to the Indenture Trustee, the proposed successor servicer and the existing servicer of a written notice stating such designation. The Indenture Trustee shall, promptly after receiving any such notice, deliver to the Rating Agencies an executed Notice and Acknowledgment in the form of Exhibit C. The Designated Person shall become the Servicer on the date as of which the following condition Indenture Trustee shall be satisfiedhave received: (i) the prior written notice to the Rating Agencies by the Indenture Trustee (at the direction of the Controlling Class Representative)Agency Confirmation; (ii) the Issuer’s receipt of an Acknowledgment of Proposed Servicer in the form of Exhibit D, executed by the Designated Person; and (iii) an Opinion of Counsel (which shall not be an expense of the Indenture Trustee) substantially to the effect that (A) the designation of the Designated Person to serve as Servicer is in compliance with this Section 4.06, (B) the Designated Person is validly existing and in good standing under the laws of the jurisdiction of its organization, (C) the Acknowledgment of Proposed Servicer has been duly authorized, executed and delivered by the Designated Person and (D) upon the execution and delivery of the Acknowledgment of Proposed Servicer, the Designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, that this Agreement shall be enforceable against the Designated Person in accordance with its terms. Any existing Servicer shall be deemed to have been terminated simultaneously with such Designated Person’s becoming the Servicer hereunder; provided that (i) the terminated Servicer shall be entitled to receive, in connection with, and upon the effective date of, its termination, payment out of the Collection Account of all of its accrued and unpaid Servicing Fee, Other Servicing Fees earned pursuant to Section 2.04 and reimbursement from the successor servicer of (x) all outstanding Debt Service Advances and Servicing Advances made by the terminated Servicer and all unpaid Advance Interest accrued on such outstanding Debt Service Advances and Servicing Advances (in which case the successor servicer shall be deemed to have made such Debt Service Advances and Servicing Advances at the same time that the terminated Servicer had actually made them) and (y) any outstanding Additional Issuer Expenses previously made or incurred by the terminated Servicer and any other amounts which the terminated Servicer is entitled to receive and which remain unpaid or unreimbursed, and (ii) such Servicer shall continue to be entitled to the benefits of the final sentence of Section 4.03, Section 4.04, Section 4.06, Section 5.01, Section 5.02 and Section 6.02, notwithstanding any such resignation or termination; and provided, further, that the terminated Servicer shall continue to be obligated to pay and entitled to receive all other amounts accrued or owing by or to it under this Agreement or under any of the other Transaction Documents on or prior to the effective date of such termination. Such terminated Servicer shall cooperate with the Indenture Trustee and the replacement Servicer in effecting the transfer of the terminated Servicer’s responsibilities and rights hereunder to its successor, including the transfer within two (2) Business Days to the replacement Servicer for administration by it of all cash amounts that at the time are or should have been credited by the Servicer to the Impositions and Insurance Reserve Account or any Reserve Account or should have been delivered to the Servicer or that are thereafter received by or on behalf of it with respect to the Notes. The reasonable out-of-pocket costs and expenses of any such transfer shall in no event be paid by the Indenture Trustee or the Servicer, and instead shall be paid by the Controlling Class Representative or the holders (or, if applicable, the Note Owners) of Notes of the Class that voted to remove the terminated Servicer, as such parties may agree; provided, however, that if the Controlling Class Representative (or, if applicable, the Note Owners) does not reimburse the Indenture Trustee or the Servicer within thirty (30) days of demand therefor, such expenses shall be reimbursed as Additional Issuer Expenses.

Designation of Servicer by the Controlling Class. The Controlling Class Representative may, during such time as the Notes are Mortgage Loan is a Specially Serviced NotesMortgage Loan, at any time and from time to time designate a Person (other than the Indenture Trustee) to replace any existing Servicer or any Servicer that has resigned or otherwise ceased to serve as Servicer, such successor servicer to be reasonably acceptable to the Indenture Trustee. The Controlling Class Representative shall so designate a Person (the “Designated Person”) to so serve as successor servicer Servicer by the delivery to the Indenture Trustee, the proposed successor servicer Servicer and the existing servicer Servicer of a written notice stating such designation. The Indenture Trustee shall, promptly after receiving any such notice, deliver to the Rating Agencies an executed Notice and Acknowledgment in the form of attached hereto as Exhibit C. I-1. The Designated designated Person shall become the Servicer on the date as of which the following condition Trustee shall be satisfiedhave received: (i) the prior written notice to the Rating Agencies by the Indenture Trustee (at the direction of the Controlling Class Representative)Agency Confirmation; (ii) the Issuer’s receipt of an Acknowledgment of Proposed Servicer in the form of attached hereto as Exhibit DI-2, executed by the Designated designated Person; and (iii) an Opinion of Counsel (which shall not be an expense of the Indenture TrusteeTrustee or the Trust) substantially to the effect that (A) the designation of the Designated such Person to serve as Servicer is in compliance with this Section 4.066.06, (B) the Designated designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (C) the Acknowledgment of Proposed Servicer has been duly authorized, executed and delivered by the Designated designated Person and (D) upon the execution and delivery of the Acknowledgment of Proposed Servicer, the Designated designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, that this Agreement shall be enforceable against the Designated designated Person in accordance with its terms. Any existing Servicer shall be deemed to have been terminated simultaneously with such Designated designated Person’s becoming the Servicer hereunder; provided that (i) the terminated Servicer shall be entitled to receive, in connection with, and upon the effective date of, with its termination, payment out of the Collection Account of all of its accrued and unpaid Servicing FeeFees, Other Servicing Fees earned pursuant to Section 2.04 and reimbursement from the successor servicer Servicer of (x) all outstanding Debt Service Advances and Servicing Advances made by the terminated Servicer and all unpaid Advance Interest accrued on such outstanding Debt Service Advances and Servicing Advances (in which case the successor servicer Servicer shall be deemed to have made such Debt Service Advances and Servicing Advances at the same time that the terminated Servicer had actually made them) and (y) any other outstanding Additional Issuer Trust Fund Expenses previously made or incurred by the terminated Servicer and any other amounts which Servicer, (ii) the resigning or terminated Servicer is shall be entitled to receive any Workout Fees thereafter received on the Mortgage Loan if it was a Worked-out Mortgage Loan at the time of the termination or if such Mortgage Loan would have been a Worked-out Mortgage Loan at the time of termination but for the payment of three Monthly Payment Amounts (but only if and which remain unpaid or unreimbursedto the extent permitted by Section 3.11(c)), and (iiiii) such Servicer shall continue to be entitled to the benefits of the final sentence of Section 4.03, Section 4.04, Section 4.06, Section 5.01, Section 5.02 and Section 6.026.03, notwithstanding any such resignation or termination; and provided, further, that the terminated Servicer shall continue to be obligated to pay and entitled to receive all other amounts accrued or owing by or to it under this Agreement or under any of the other Transaction Documents on or prior to the effective date of such termination. Such terminated Servicer shall cooperate with the Indenture Trustee and the replacement Servicer in effecting the transfer of the terminated Servicer’s responsibilities and rights hereunder to its successor, including the transfer within two (2) Business Days to the replacement Servicer for administration by it of all cash amounts that at the time are or should have been credited by the Servicer to the REO Account or to the Impositions and Insurance Reserve Sub-Account or any Reserve Account or should have been delivered to the Servicer or that are thereafter received by or on behalf of it with respect to the NotesMortgage Loan or an REO Property. The reasonable out-of-pocket costs and expenses of any such transfer shall in no event be paid by out of the Indenture Trustee or the ServicerTrust Fund, and instead shall be paid by the successor Servicer or the Controlling Class Representative or (or, the holders Holders (or, if applicable, the Note Certificate Owners) of Notes Certificates of the Class that voted to remove the terminated Servicer, as such parties may agree; provided, however, that if the Controlling Class Representative (or, if applicable, the Note Owners) does not reimburse the Indenture Trustee or the Servicer within thirty (30) days of demand therefor, such expenses shall be reimbursed as Additional Issuer Expenses).