Designation of Special Servicer by the Controlling Class Certificateholders and Others. (a) Subject to the terms of this section, the Holder or Holders of the Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class may at any time and from time to time designate a Person meeting the requirements set forth in Section 6.04 (including, without limitation, Rating Agency confirmation) to serve as Special Servicer hereunder and to replace any existing Special Servicer without cause or any Special Servicer that has resigned or otherwise ceased to serve in such capacity; provided that such Holder or Holders shall pay all costs related to the transfer of servicing if the Special Servicer is replaced other than due to an Event of Default; and provided, further, that, for so long as the WellPoint B-Noteholder is the WellPoint Controlling Party, the Holder or Holders of Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class may not terminate or replace any WellPoint Special Servicer appointed by the WellPoint B-Noteholder in accordance with Section 6.09(b). Such Holder or Holders shall so designate a Person to serve as replacement Special Servicer by the delivery to the Trustee, the Certificate Administrator, the Master Servicer, each B-Noteholder and the existing Special Servicer of a written notice stating such designation. The Trustee shall, promptly after receiving any such notice, deliver to the Rating Agencies (and any other rating agencies that may be rating any Non-Trust Loan Securities) an executed Notice and Acknowledgment in the form attached hereto as Exhibit J-1. If such Holders have not replaced a Special Servicer within 30 days of such Special Servicer's resignation or the date such Special Servicer has ceased to serve in such capacity, and subject to the prior rights of the WellPoint B-Noteholder (for so long as it is the WellPoint Controlling Party) to appoint a WellPoint Special Servicer in accordance with Section 6.09(b), the Trustee shall designate a successor Special Servicer, subject to removal by the Holder or Holders of Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class or as and to the extent otherwise so provided in Section 6.09(b), and appointment of a successor thereto pursuant to the terms of this Section 6.09. Subject to the provisos to the first sentence of this Section 6.09(a), any Person designated pursuant to this Section 6.09(a), whether designated by Holders of the Controlling Class or by the Trustee, shall become the Special Servicer, subject to satisfaction of the other conditions set forth below, on the date that the Trustee shall have received written confirmation from all of the Rating Agencies (and any other rating agencies that may be rating any Non-Trust Loan Securities) that the appointment of such Person will not result in the qualification, downgrading or withdrawal of the rating or ratings assigned to one or more Classes of the Certificates (or, if applicable, one or more classes of Non-Trust Loan Securities); provided that such confirmation need not be obtained from Fitch if the designated Person is rated at least "CSS2" by Fitch as a special servicer). The appointment of such designated Person as Special Servicer shall also be subject to receipt by the Trustee of (1) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit J-2, executed by the designated Person, and (2) an Opinion of Counsel (at the expense of the Person designated to become the Special Servicer) to the effect that the designation of such Person to serve as Special Servicer is in compliance with this Section 6.09 and all other applicable provisions of this Agreement, that upon the execution and delivery of the Acknowledgment of Proposed Special Servicer the designated Person shall be bound by the terms of this Agreement and, subject to customary limitations, that this Agreement shall be enforceable against the designated Person in accordance with its terms. Subject to the provisos to the first sentence of this Section 6.09(a), any existing Special Servicer shall be deemed to have resigned simultaneously with such designated Person's becoming the Special Servicer hereunder; provided, however, that the resigning Special Servicer shall continue to be entitled to receive all amounts accrued or owing to it under this Agreement on or prior to the effective date of such resignation (including Workout Fees earned on Specially Serviced Mortgage Loans which became Corrected Mortgage Loans prior to its resignation or are otherwise payable to the terminated or resigning Special Servicer pursuant to Section 3.11(c)), and it shall continue to be entitled to the benefits of Section 6.03 notwithstanding any such resignation. Such resigning Special Servicer shall cooperate with the Trustee and the replacement Special Servicer in effecting the termination of the resigning Special Servicer's responsibilities and rights hereunder, including, without limitation, the transfer within two (2) Business Days to the replacement Special Servicer for administration by it of all cash amounts that shall at the time be or should have been credited by the Special Servicer to a Collection Account, an A/B Custodial Account, a Servicing Account, a Reserve Account or an REO Account or delivered to the Master Servicers or that are thereafter received with respect to Specially Serviced Mortgage Loans and Administered REO Properties. Notwithstanding the foregoing, if the Controlling Class of Certificates consists of Book-Entry Certificates, then the rights of the Holders of the Controlling Class of Certificates set forth above in this Section 6.09 may be exercised directly by the relevant Certificate Owner(s); provided that the identity of such Certificate Owner(s) has been confirmed to the Trustee to its reasonable satisfaction. (b) For so long as it is the WellPoint Controlling Holder, the WellPoint B-Noteholder may, in accordance with the WellPoint Co-Lender Agreement, upon at least ten (10) Business Days' prior notice to the Special Servicer, the Master Servicers, the Certificate Administrator and the Trustee, with or without cause, terminate the rights and obligations of the Special Servicer hereunder solely with 235 respect to the WellPoint Loan Combination or related REO Property and designate a Person to serve as WellPoint Special Servicer hereunder; provided that the WellPoint B-Noteholder shall pay all reasonable and customary costs and expenses related thereto, to the extent provided under the WellPoint Co-Lender Agreement. The WellPoint B-Noteholder shall so designate a Person to serve as replacement WellPoint Special Servicer by the delivery to the Trustee, the Master Servicers, the Certificate Administrator and the existing WellPoint Special Servicer of a written notice stating such designation. The Trustee shall, promptly after receiving any such notice, deliver to the Rating Agencies (and any other rating agencies rating Non-Trust Loan Securities backed by a WellPoint Non-Trust Loan or any successor REO B-Note Non-Trust Mortgage Loan with respect thereto) an executed Notice and Acknowledgment in the form attached hereto as Exhibit J-1. If the WellPoint B-Noteholder is the WellPoint Controlling Holder, and if the WellPoint B-Noteholder has not designated a replacement WellPoint Special Servicer within 30 days of the predecessor WellPoint Special Servicer having been terminated by the WellPoint Controlling Holder, then the Holder or Holders of Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class or the Trustee shall designate a successor WellPoint Special Servicer in accordance with Section 6.09(a), subject to removal in accordance with this Section 6.09. Any Person designated by the WellPoint Controlling Holder to act as a WellPoint Special Servicer shall become the WellPoint Special Servicer on the date as of which the Trustee shall have received all of the following: (1) written confirmation from all of the Rating Agencies (and any other rating agencies rating Non-Trust Loan Securities backed by a WellPoint B-Note Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect thereto) that the appointment of such Person will not result in the qualification, downgrading or withdrawal of the rating or ratings assigned to one or more Classes of the Certificates or one or more classes of Non-Trust Loan Securities backed by a WellPoint B-Note Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect thereto; (2) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit J-2 (modified to specifically relate to the WellPoint Loan Combination or any related REO Property), executed by the designated Person; and (3) an Opinion of Counsel (at the expense of the Person designated to become the WellPoint Special Servicer) to the effect that the designation of such Person as WellPoint Special Servicer is in compliance with this Section 6.09(b) and all other applicable provisions of this Agreement and the WellPoint Co-Lender Agreement, that, upon the execution and delivery of the Acknowledgment of Proposed WellPoint Special Servicer, the designated Person shall be bound by the terms of this Agreement and, subject to customary limitations, that this Agreement shall be enforceable against the designated Person in accordance with its terms. Any existing WellPoint Special Servicer shall be deemed to have resigned simultaneously with such designated Person's becoming the WellPoint Special Servicer hereunder; provided, however, that (i) the resigning WellPoint Special Servicer shall continue to be entitled to receive all amounts accrued or owing to it under this Agreement on or prior to the effective date of such resignation, whether in respect of Servicing Advances or otherwise, and (ii) the resigning WellPoint Special Servicer shall continue to be entitled to the benefits of Section 6.03 notwithstanding any such resignation. The outgoing WellPoint Special Servicer shall cooperate with the Trustee and the replacement WellPoint Special Servicer in effecting the termination of the outgoing WellPoint Special Servicer's responsibilities and rights hereunder, including, without limitation, the transfer within two (2) Business Days to the replacement WellPoint Special Servicer for administration by it of all cash amounts relating to the WellPoint Loan Combination or any related REO Property that shall at the time be or should have been credited by the WellPoint Special Servicer to a Collection Account, an A/B Custodial Account, a Servicing Account, a Reserve Account or an REO Account or should have been delivered to the Master Servicers or that are thereafter received with respect to the WellPoint Loan Combination and/or any related REO Property. The Trustee shall notify the other parties hereto and the Certificateholders of any termination of the WellPoint Special Servicer and appointment of a new WellPoint Special Servicer in accordance with this Section 6.09(b).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2006-C5)
Designation of Special Servicer by the Controlling Class Certificateholders and Others. (a) Subject to the terms of this section, the Holder or Holders of the Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class may at any time and from time to time designate a Person meeting the requirements set forth in Section 6.04 (including, without limitation, Rating Agency confirmation) to serve as Special Servicer hereunder and to replace any existing Special Servicer without cause or any Special Servicer that has resigned or otherwise ceased to serve in such capacity; provided that such Holder or Holders shall pay all costs related to the transfer of servicing if the Special Servicer is replaced other than due to an Event of Default; and provided, further, that, for so long as the WellPoint B-Noteholder is the WellPoint Controlling Party, the Holder or Holders of Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class may not terminate or replace any WellPoint Special Servicer appointed by the WellPoint B-Noteholder in accordance with Section 6.09(b). Such Holder or Holders shall so designate a Person to serve as replacement Special Servicer by the delivery to the Trustee, the Certificate Administrator, the Master ServicerServicers, each BServiced Non-Trust Mortgage Loan Noteholder and the existing Special Servicer of a written notice stating such designation. The Trustee shall, promptly after receiving any such notice, deliver to the Rating Agencies (and any other rating agencies that may be rating any Non-Trust Mortgage Loan Securities) an executed Notice and Acknowledgment in the form attached hereto as Exhibit J-1. If such Holders have not replaced a Special Servicer within 30 days of such Special Servicer's resignation or the date such Special Servicer has ceased to serve in such capacity, and subject to the prior rights of the WellPoint B-Noteholder (for so long as it is the WellPoint Controlling Partyany Person(s) to appoint a WellPoint Special Servicer special service with respect to any particular Serviced Trust Mortgage Loan or Serviced Loan Combination in accordance with Section 6.09(b), the Trustee shall designate a successor Special Servicer, subject to removal by the Holder or Holders of Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class or as and to the extent otherwise so provided in Section 6.09(b), and appointment of a successor thereto pursuant to the terms of this Section 6.09. Subject to the provisos to the first sentence of this Section 6.09(a), any Person designated pursuant to this Section 6.09(a), whether designated by Holders of the Controlling Class or by the Trustee, shall become the Special Servicer, subject to satisfaction of the other conditions set forth below, on the date that the Trustee shall have received written confirmation from all of the Rating Agencies (and any other rating agencies that may be rating any Non-Trust Mortgage Loan Securities) that the appointment of such Person will not result in the qualification, downgrading or withdrawal of the rating or ratings assigned to one or more Classes of the Certificates (or, if applicable, one or more classes of Non-Trust Mortgage Loan Securities); provided that such confirmation need not be obtained from Fitch if the designated Person is rated at least "CSS2" by Fitch as a special servicer). The appointment of such designated Person as Special Servicer shall also be subject to receipt by the Trustee of (1) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit J-2, executed by the designated Person, and (2) an Opinion of Counsel (at the expense of the Person designated to become the Special Servicer) to the effect that the designation of such Person to serve as Special Servicer is in compliance with this Section 6.09 and all other applicable provisions of this Agreement, that upon the execution and delivery of the Acknowledgment of Proposed Special Servicer the designated Person shall be bound by the terms of this Agreement and, subject to customary limitations, that this Agreement shall be enforceable against the designated Person in accordance with its terms. Subject to the provisos to the first sentence of this Section 6.09(a), any existing Special Servicer shall be deemed to have resigned simultaneously with such designated Person's becoming the Special Servicer hereunder; provided, however, that the resigning Special Servicer shall continue to be entitled to receive all amounts accrued or owing to it under this Agreement on or prior to the effective date of such resignation (including Workout Fees earned on Specially Serviced Mortgage Loans which became Corrected Mortgage Loans prior to its resignation or are otherwise payable to the terminated or resigning Special Servicer pursuant to Section 3.11(c)), and it shall continue to be entitled to the benefits of Section 6.03 notwithstanding any such resignation. Such resigning Special Servicer shall cooperate with the Trustee and the replacement Special Servicer in effecting the termination of the resigning Special Servicer's responsibilities and rights hereunder, including, without limitation, the transfer within two (2) Business Days to the replacement Special Servicer for administration by it of all cash amounts that shall at the time be or should have been credited by the Special Servicer to a Collection Account, an A/B SLC Custodial Account, a Servicing Account, a Reserve Account or an REO Account or delivered to the Master Servicers or that are thereafter received with respect to Specially Serviced Mortgage Loans and Administered REO Properties. For purposes of exercising any rights that the holder of the Mortgage Note for any SLC Trust Mortgage Loan may have under the related Co-Lender Agreement to replace and/or appoint a special servicer with respect to the related Serviced Loan Combination, the Holder or, collectively, the Holders of Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class shall be the designee of the Trust, as such noteholder, and the Trustee shall take such actions as may be necessary under the related Co-Lender Agreement to effect such designation. Notwithstanding the foregoing, if the Controlling Class of Certificates consists of Book-Entry Certificates, then the rights of the Holders of the Controlling Class of Certificates set forth above in this Section 6.09 may be exercised directly by the relevant Certificate Owner(s); provided that the identity of such Certificate Owner(s) has been confirmed to the Trustee to its reasonable satisfaction.
(b) For so long as it no One World Financial Center Change of Control Event has occurred and is the WellPoint Controlling Holder, the WellPoint B-Noteholder may, in accordance continuing with the WellPoint Co-Lender Agreement, upon at least ten (10) Business Days' prior notice to the Special Servicer, the Master Servicers, the Certificate Administrator and the Trustee, with or without cause, terminate the rights and obligations of the Special Servicer hereunder solely with 235 respect to the WellPoint One World Financial Center Loan Combination or related REO Property and designate a Person to serve as WellPoint Special Servicer hereunder; provided that the WellPoint B-Noteholder shall pay all reasonable and customary costs and expenses related thereto, to the extent provided under the WellPoint Co-Lender Agreement. The WellPoint B-Noteholder shall so designate a Person to serve as replacement WellPoint Special Servicer by the delivery to the TrusteeCombination, the Master Servicers, the Certificate Administrator and the existing WellPoint Special Servicer of a written notice stating such designation. The Trustee shall, promptly after receiving any such notice, deliver to the Rating Agencies (and any other rating agencies rating Non-Trust Loan Securities backed by a WellPoint Non-Trust Loan or any successor REO B-Note One World Financial Center Non-Trust Mortgage Loan Noteholder shall be entitled, solely with respect theretoto such Loan Combination, to exercise any and all rights to terminate, appoint and/or replace the Special Servicer that are granted, pursuant to Section 6.09(a), to the Holders (or, if applicable, Certificate Owners) an executed Notice of Certificates representing a majority of the Voting Rights allocated to the Controlling Class, in all cases subject to the same terms, conditions and Acknowledgment limitations as are applicable to any such termination, appointment and/or replacement by the Holders (or, if applicable, Certificate Owners) of Certificates representing a majority of the Voting Rights allocated to the Controlling Class. Notwithstanding anything herein to the contrary, the One World Financial Center Non-Trust Mortgage Loan Noteholder shall not have any right under such circumstances to terminate, replace or appoint any party as Special Servicer in respect of any Mortgage Loan or REO Property other than the form attached hereto as Exhibit J-1. If the WellPoint B-Noteholder is the WellPoint Controlling HolderOne World Financial Center Loan Combination and any related REO Property, and such right shall exist with respect to the One World Financial Center Loan Combination only if and for so long as no One World Financial Center Change of Control Event has occurred and is continuing. For so long as a Class WFC Control Period is in effect, the WellPoint B-Noteholder has not designated Holders (or, if applicable, Certificate Owners) of Certificates representing a replacement WellPoint majority of the Voting Rights allocated to the Controlling WFC Class shall be entitled, solely with respect to the One World Financial Center Loan Combination or any related REO Property, to exercise any and all rights to terminate, appoint and/or replace the Special Servicer within 30 days that are granted, pursuant to Section 6.09(a), to the Holders (or, if applicable, Certificate Owners) of Certificates representing a majority of the predecessor WellPoint Voting Rights allocated to the Controlling Class, in all cases subject to the same terms, conditions and limitations as are applicable to any such termination, appointment and/or replacement by the Holders (or, if applicable, Certificate Owners) of Certificates representing a majority of the Voting Rights allocated to the Controlling Class. Notwithstanding anything herein to the contrary, the Holders (or, if applicable, Certificate Owners) of Certificates representing a majority of the Voting Rights allocated to the Controlling WFC Class shall not have any right to terminate, replace or appoint any party as Special Servicer having been terminated by in respect of any Mortgage Loan or REO Property other than the WellPoint Controlling HolderOne World Financial Center Loan Combination and any related REO Property. Notwithstanding the foregoing, then the Holder or Holders (or, if applicable, Certificate Owners) of Certificates evidencing representing a majority of the Voting Rights allocated to the Controlling Class or the Trustee shall designate continue to have all rights to terminate, appoint and/or replace a successor WellPoint Special Servicer in accordance with Section 6.09(a)6.09; provided that: (i) for so long as no One World Financial Center Change of Control Event has occurred and is continuing with respect to the One World Financial Center Loan Combination, subject the Holders (or, if applicable, Certificate Owners) of Certificates representing a majority of the Voting Rights allocated to removal in accordance with this Section 6.09. Any Person designated the Controlling Class may not terminate or replace, without cause, any Special Servicer appointed by the WellPoint Controlling Holder to act as a WellPoint Special Servicer shall become the WellPoint Special Servicer on the date as of which the Trustee shall have received all of the following: (1) written confirmation from all of the Rating Agencies (and any other rating agencies rating Non-Trust Loan Securities backed by a WellPoint B-Note One World Financial Center Non-Trust Mortgage Loan or any successor REO Mortgage Loan Noteholder with respect thereto) that the appointment of such Person will not result in the qualification, downgrading or withdrawal of the rating or ratings assigned to one or more Classes of the Certificates or one or more classes of Non-Trust Loan Securities backed by a WellPoint B-Note Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect thereto; (2) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit J-2 (modified to specifically relate to the WellPoint One World Financial Center Loan Combination or any related REO PropertyProperty pursuant to this Section 6.09(b), executed by the designated Person; and (3ii) an Opinion for so long as a Class WFC Control Period is in effect, the Holders (or, if applicable, Certificate Owners) of Counsel (at the expense Certificates representing a majority of the Person designated to become the WellPoint Special Servicer) Voting Rights allocated to the effect that the designation of such Person as WellPoint Controlling Class may not terminate or replace, without cause, any Special Servicer is in compliance appointed by the Holders (or, if applicable, Certificate Owners) of Certificates representing a majority of the Voting Rights allocated to the Controlling WFC Class with respect to the One World Financial Center Loan Combination or any related REO Property pursuant to this Section 6.09(b) and all other applicable provisions of this Agreement and the WellPoint Co-Lender Agreement, that, upon the execution and delivery of the Acknowledgment of Proposed WellPoint Special Servicer, the designated Person shall be bound by the terms of this Agreement and, subject to customary limitations, that this Agreement shall be enforceable against the designated Person in accordance with its terms). Any existing WellPoint One World Financial Center Special Servicer shall be deemed to have resigned simultaneously with such the designated Personreplacement's becoming the WellPoint One World Financial Center Special Servicer hereunder; provided, however, that (i) the resigning WellPoint One World Financial Center Special Servicer shall continue to be entitled to receive all amounts accrued or owing to it under this Agreement on or prior to the effective date of such resignation, whether in respect of Servicing Advances or otherwise, and (ii) the resigning WellPoint One World Financial Center Special Servicer shall continue to be entitled to the benefits of Section 6.03 notwithstanding any such resignation. The outgoing WellPoint One World Financial Center Special Servicer shall cooperate with the Trustee and the replacement WellPoint One World Financial Center Special Servicer in effecting the termination of the outgoing WellPoint One World Financial Center Special Servicer's responsibilities and rights hereunder, including, without limitation, the transfer within two (2) Business Days to the replacement WellPoint One World Financial Center Special Servicer for administration by it of all cash amounts relating to the WellPoint One World Financial Center Loan Combination or any related REO Property that shall at the time be or should have been credited by the WellPoint One World Financial Center Special Servicer to a the Collection Account, an A/B the related SLC Custodial Account, a Servicing Account, a Reserve Account or an REO Account or should have been delivered to the applicable Master Servicers Servicer or that are thereafter received with respect to the WellPoint One World Financial Center Loan Combination and/or any related REO Property. The Trustee shall notify the other parties hereto and the Certificateholders of any termination of the WellPoint One World Financial Center Special Servicer and appointment of a new WellPoint One World Financial Center Special Servicer in accordance with this Section 6.09(b).
(c) If a replacement special servicer is appointed with respect to a Serviced Loan Combination or any related REO Property in accordance with Section 6.09(b) or 7.01(c) such that there are multiple parties acting as Special Servicer hereunder, then, unless the context clearly requires otherwise: (i) when used in the context of imposing duties and obligations on the Special Servicer hereunder or the performance of such duties and obligations, the term "Special Servicer" shall mean the applicable SLC Special Servicer, insofar as such duties and obligations relate to the subject Serviced Loan Combination or any related REO Property, and shall mean the General Special Servicer (as defined below), in all other cases (provided that, in Section 3.13, Section 3.14 and Section 3.15, the term "Special Servicer" shall mean each of the SLC Special Servicers and the General Special Servicer); (ii) when used in the context of identifying the recipient of any information, funds, documents, instruments and/or other items, the term "Special Servicer" shall mean the applicable SLC Special Servicer, insofar as such information, funds, documents, instruments and/or other items relate to the subject Serviced Loan Combination or any related REO Property, and shall mean the General Special Servicer, in all other cases; (iii) when used in the context of granting the Special Servicer the right to purchase Defaulted Trust Mortgage Loans pursuant to Section 3.18, the term "Special Servicer" shall mean the General Special Servicer only; (iv) when used in the context of granting the Special Servicer the right to purchase all of the Trust Mortgage Loans and any REO Properties remaining in the Trust Fund pursuant to Section 9.01, the term "Special Servicer" shall mean the General Special Servicer only; (v) when used
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CD 2007-Cd4 Commercial Mortgage Trust)
Designation of Special Servicer by the Controlling Class Certificateholders and Others. (a) Subject to the terms of this section, the Holder or Holders of the Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class may at any time and from time to time designate a Person meeting the requirements set forth in Section 6.04 (including, without limitation, Rating Agency confirmation) to serve as Special Servicer hereunder and to replace any existing Special Servicer without cause or any Special Servicer that has resigned or otherwise ceased to serve in such capacity; provided that such Holder or Holders shall pay all costs related to the transfer of servicing if the Special Servicer is replaced other than due to an Event of Default; and provided, further, that, for so long as the WellPoint B-Noteholder is the WellPoint Controlling Party, that the Holder or Holders of Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class may not terminate or replace any WellPoint ShopKo Portfolio Special Servicer appointed by the WellPoint BShopKo Portfolio Controlling Non-Noteholder Trust Loan Noteholders in accordance with Section 6.09(b). Such Holder or Holders shall so designate a Person to serve as replacement Special Servicer by the delivery to the Trustee, the Certificate Administrator, the Master Servicer, each BNon-Trust Loan Noteholder and the existing Special Servicer of a written notice stating such designation. The Trustee shall, promptly after receiving any such notice, deliver to the Rating Agencies (and any other rating agencies that may be rating any Non-Trust Loan Securities) an executed Notice and Acknowledgment in the form attached hereto as Exhibit J-1. If such Holders have not replaced a Special Servicer within 30 days of such Special Servicer's resignation or the date such Special Servicer has ceased to serve in such capacity, and subject to the prior rights of the WellPoint B204 ShopKo Portfolio Controlling Non-Noteholder (for so long as it is the WellPoint Controlling Party) Trust Loan Noteholders to appoint a WellPoint ShopKo Portfolio Special Servicer in accordance with Section 6.09(b), the Trustee shall designate a successor Special Servicer, subject to removal by the Holder or Holders of Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class or as and to the extent otherwise so provided in Section 6.09(b), and appointment of a successor thereto pursuant to the terms of this Section 6.09. Subject to the provisos to the first sentence of this Section 6.09(a), any Person designated pursuant to this Section 6.09(a), whether designated by Holders of the Controlling Class or by the Trustee, shall become the Special Servicer, subject to satisfaction of the other conditions set forth below, on the date that the Trustee shall have received written confirmation from all of the Rating Agencies (and any other rating agencies that may be rating any Non-Trust Loan Securities) that the appointment of such Person will not result in the qualification, downgrading or withdrawal of the rating or ratings assigned to one or more Classes of the Certificates (or, if applicable, one or more classes of Non-Trust Loan Securities); provided that such confirmation need not be obtained from Fitch if the designated Person is rated at least "CSS2" by Fitch as a special servicer). The appointment of such designated Person as Special Servicer shall also be subject to receipt by the Trustee of (1) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit J-2, executed by the designated Person, and (2) an Opinion of Counsel (at the expense of the Person designated to become the Special Servicer) to the effect that the designation of such Person to serve as Special Servicer is in compliance with this Section 6.09 and all other applicable provisions of this Agreement, that upon the execution and delivery of the Acknowledgment of Proposed Special Servicer the designated Person shall be bound by the terms of this Agreement and, subject to customary limitations, that this Agreement shall be enforceable against the designated Person in accordance with its terms. Subject to the provisos to the first sentence of this Section 6.09(a), any existing Special Servicer shall be deemed to have resigned simultaneously with such designated Person's becoming the Special Servicer hereunder; provided, however, that the resigning Special Servicer shall continue to be entitled to receive all amounts accrued or owing to it under this Agreement on or prior to the effective date of such resignation (including Workout Fees earned on Specially Serviced Mortgage Loans which became Corrected Mortgage Loans prior to its resignation or are otherwise payable to the terminated or resigning Special Servicer pursuant to Section 3.11(c)), and it shall continue to be entitled to the benefits of Section 6.03 notwithstanding any such resignation. Such resigning Special Servicer shall cooperate with the Trustee and the replacement Special Servicer in effecting the termination of the resigning Special Servicer's responsibilities and rights hereunder, including, without limitation, the transfer within two (2) Business Days to the replacement Special Servicer for administration by it of all cash amounts that shall at the time be or should have been credited by the Special Servicer to a the Collection Account, an A/B a Loan Combination Custodial Account, a Servicing Account, a Reserve Account or an REO Account or delivered to the Master Servicers Servicer or that are thereafter received with respect to Specially Serviced Mortgage Loans and Administered REO Properties. Notwithstanding the foregoing, if the Controlling Class of Certificates consists of Book-Entry Certificates, then the rights of the Holders of the Controlling Class of Certificates set forth above in this Section 6.09 may be exercised directly by the relevant Certificate Owner(s); provided that the identity of such Certificate Owner(s) has been confirmed to the Trustee to its reasonable satisfaction.
(b) For so long as it is the WellPoint The ShopKo Portfolio Controlling Holder, the WellPoint BNon-Noteholder Trust Loan Noteholders may, in accordance with Section 3.02 of the WellPoint ShopKo Portfolio Co-Lender Agreement, upon at least ten (10) Business Days' prior notice to the Special Servicer, the Master Servicers, the Certificate Administrator Servicer and the Trustee, with or without cause, terminate the rights and obligations of the Special Servicer hereunder solely with 235 respect to the WellPoint ShopKo Portfolio Loan Combination or related REO Property and designate a Person to serve as WellPoint ShopKo Portfolio Special Servicer hereunder; provided that the WellPoint B-Noteholder shall pay all reasonable and customary costs and expenses related thereto, to the extent provided under the WellPoint Co-Lender Agreement. The WellPoint B-Noteholder shall so designate a Person to serve as replacement WellPoint Special Servicer by the delivery to the Trustee, the Master Servicers, the Certificate Administrator and the existing WellPoint Special Servicer of a written notice stating such designation. The Trustee shall, promptly after receiving any such notice, deliver to the Rating Agencies (and any other rating agencies rating Non-Trust Loan Securities backed by a WellPoint Non-Trust Loan or any successor REO B-Note Non-Trust Mortgage Loan with respect thereto) an executed Notice and Acknowledgment in the form attached hereto as Exhibit J-1. If the WellPoint B-Noteholder is the WellPoint ShopKo Portfolio Controlling Holder, and if the WellPoint B-Noteholder has not designated a replacement WellPoint Special Servicer within 30 days of the predecessor WellPoint Special Servicer having been terminated by the WellPoint Controlling Holder, then the Holder or Holders of Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class or the Trustee shall designate a successor WellPoint Special Servicer in accordance with Section 6.09(a), subject to removal in accordance with this Section 6.09. Any Person designated by the WellPoint Controlling Holder to act as a WellPoint Special Servicer shall become the WellPoint Special Servicer on the date as of which the Trustee shall have received all of the following: Non-
(1) written confirmation from all of the Rating Agencies (and any other rating agencies rating Non-Trust Loan Securities backed by a WellPoint B-Note ShopKo Portfolio Non-Trust Mortgage Loan or any successor REO Mortgage Non-Trust Loan with respect thereto) that the appointment of such Person will not result in the qualification, downgrading or withdrawal of the rating or ratings assigned to one or more Classes of the Certificates or one or more classes of Non-Trust Loan Securities backed by a WellPoint B-Note ShopKo Portfolio Non-Trust Mortgage Loan or any successor REO Mortgage Non-Trust Loan with respect thereto; (2) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit J-2 (modified to specifically relate to the WellPoint ShopKo Portfolio Loan Combination or any related REO Property), executed by the designated Person; and (3) an Opinion of Counsel (at the expense of the Person designated to become the WellPoint ShopKo Portfolio Special Servicer) to the effect that the designation of such Person as WellPoint ShopKo Portfolio Special Servicer is in compliance with this Section 6.09(b) and all other applicable provisions of this Agreement and the WellPoint ShopKo Portfolio Co-Lender Agreement, that, upon the execution and delivery of the Acknowledgment of Proposed WellPoint ShopKo Portfolio Special Servicer, the designated Person shall be bound by the terms of this Agreement and, subject to customary limitations, that this Agreement shall be enforceable against the designated Person in accordance with its terms. Any existing WellPoint ShopKo Portfolio Special Servicer shall be deemed to have resigned simultaneously with such designated Person's becoming the WellPoint ShopKo Portfolio Special Servicer hereunder; provided, however, that (i) the resigning WellPoint ShopKo Portfolio Special Servicer shall continue to be entitled to receive all amounts accrued or owing to it under this Agreement on or prior to the effective date of such resignation, whether in respect of Servicing Advances or otherwise, and (ii) the resigning WellPoint ShopKo Portfolio Special Servicer shall continue to be entitled to the benefits of Section 6.03 notwithstanding any such resignation. The outgoing WellPoint ShopKo Portfolio Special Servicer shall cooperate with the Trustee and the replacement WellPoint ShopKo Portfolio Special Servicer in effecting the termination of the outgoing WellPoint ShopKo Portfolio Special Servicer's responsibilities and rights hereunder, including, without limitation, the transfer within two (2) Business Days to the replacement WellPoint ShopKo Portfolio Special Servicer for administration by it of all cash amounts relating to the WellPoint ShopKo Portfolio Loan Combination or any related REO Property that shall at the time be or should have been credited by the WellPoint ShopKo Portfolio Special Servicer to a the Collection Account, an A/B the related Loan Combination Custodial Account, a Servicing Account, a Reserve Account or an REO Account or should have been delivered to the Master Servicers Servicer or that are thereafter received with respect to the WellPoint ShopKo Portfolio Loan Combination and/or any related REO Property. The Trustee shall notify the other parties hereto and the Certificateholders of any termination of the WellPoint ShopKo Portfolio Special Servicer and appointment of a new WellPoint ShopKo Portfolio Special Servicer in accordance with this Section 6.09(b). Notwithstanding anything herein to the contrary, the ShopKo Portfolio Non-Trust Loan Noteholders shall not have any right to terminate, replace or appoint any party as Special Servicer in respect of any Mortgage Loan or REO Property other than the ShopKo Portfolio Loan Combination or any related REO Property.
(c) As and to the extent provided in Section 3.02(d) of the related Co-Lender Agreement, the ShopKo Portfolio Non-Trust Loan Noteholders may each designate a representative to exercise its rights under Section 6.09(b).
(d) If a replacement special servicer is appointed with respect to the ShopKo Portfolio Loan Combination or any related REO Property in accordance with Section 6.09(b) or 7.02(c) such that there are multiple parties acting as Special Servicer hereunder, then, unless the context clearly requires otherwise: (i) when used in the context of imposing duties and obligations on the Special Servicer hereunder or the performance of such duties and obligations, the term "Special Servicer" shall mean the ShopKo Portfolio Special Servicer, insofar as such duties and obligations relate to the ShopKo Portfolio Loan Combination or any related REO Property, and shall mean the General Special Servicer (as defined below), in all other cases (provided that, in Section 3.13, Section 3.14 and Section 3.15, the term "Special Servicer" shall mean each of the ShopKo Portfolio Special Servicer and the General Special Servicer); (ii) when used in the context of identifying the recipient of any information, funds, documents, instruments and/or other items, the term "Special Servicer" shall mean the ShopKo Portfolio Special Servicer, insofar as such information, funds, documents, instruments and/or other items relate to the ShopKo Portfolio Loan Combination or any related REO Property, and shall mean the General Special Servicer, in all other cases; (iii) when used in the context of granting the Special Servicer the right to purchase Defaulted Mortgage Loans pursuant to Section 3.18, the term "Special Servicer" shall mean the General Special Servicer only; (iv) when used in the context of granting the Special Servicer the right to purchase all of the Mortgage Loans and any REO Properties remaining in the Trust Fund pursuant to Section 9.01, the term "Special Servicer" shall mean the General Special Servicer only; (v) when used in the context of the Special Servicer being replaced, pursuant to Section 6.09(a), by the Holder or Holders of a majority of the Voting Rights allocated to the Controlling Class, the term "Special Servicer" shall mean the General Special Servicer or the ShopKo Portfolio Special Servicer, as applicable (provided that the Holder or Holders of a majority of the Voting Rights allocated to the Controlling Class may not, in accordance with Section 6.09(a), terminate or replace any ShopKo Portfolio Special Servicer with respect to the ShopKo Portfolio Loan Combination or any related REO Property that was appointed by the ShopKo Portfolio Controlling Non-Trust Loan Noteholders in accordance with Section 6.09(b)); (vi) when used in the context of granting the Special Servicer any protections, limitations on liability, immunities and/or indemnities hereunder, the term "Special Servicer" shall mean each of the ShopKo Portfolio Special Servicer and the General Special Servicer; and (vii) when used in the context of requiring indemnification from, imposing liability on, or exercising any remedies against, the Special Servicer for any breach of a representation, warranty or covenant hereunder or for any negligence, bad faith or willful misconduct in the performance of duties and obligations hereunder or any negligent disregard of such duties and obligations or otherwise holding the Special Servicer responsible for any of the foregoing, the term "Special Servicer" shall mean the ShopKo Portfolio Special Servicer or the General Special Servicer, as applicable.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2006-C4)
Designation of Special Servicer by the Controlling Class Certificateholders and Others. (a) Subject to the terms of this sectionsection and, in the case of a Loan Combination, the terms of the related Co-Lender Agreement, the Holder or Holders of the Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class may at any time and from time to time designate a Person meeting the requirements set forth in Section 6.04 (including, without limitation, Rating Agency and, if applicable, Other Rating Agency confirmation) to serve as Special Servicer hereunder and to replace any existing Special Servicer without cause or any Special Servicer that has resigned or otherwise ceased to serve in such capacity; provided that such Holder or Holders shall pay all costs related to the transfer of servicing if the Special Servicer is replaced other than due to an Event of Default; and provided, further, that, for so long as the WellPoint B-Noteholder is the WellPoint Controlling Party, the Holder or Holders of Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class may not terminate or replace any WellPoint Special Servicer appointed by the WellPoint B-Noteholder in accordance with Section 6.09(b). Such Holder or Holders shall so designate a Person to serve as replacement Special Servicer by the delivery to the Trustee, the Certificate Administrator, the Master ServicerServicers, each BServiced Non-Trust Mortgage Loan Noteholder and the existing Special Servicer of a written notice stating such designation. The Trustee shall, promptly after receiving any such notice, deliver to the Rating Agencies (and any other rating agencies Other Rating Agency that may be rating any Specially Designated Non-Trust Mortgage Loan Securities) an executed Notice and Acknowledgment in the form attached hereto as Exhibit J-1. If such Holders have not replaced a Special Servicer within 30 days of such Special Servicer's resignation or the date such Special Servicer has ceased to serve in such capacity, and subject to the prior rights of the WellPoint B-Noteholder (for so long as it is the WellPoint Controlling Partyany Person(s) to appoint a WellPoint Special Servicer special service with respect to any particular Serviced Trust Mortgage Loan or Serviced Loan Combination in accordance with Section 6.09(b), the Trustee shall designate a successor Special Servicer, subject to removal by the Holder or Holders of Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class or as and to the extent otherwise so provided in Section 6.09(b), and appointment of a successor thereto pursuant to the terms of this Section 6.09. Subject to the provisos to the first sentence of this Section 6.09(a), any Person designated pursuant to this Section 6.09(a), whether designated by Holders of the Controlling Class or by the Trustee, shall become the Special Servicer, subject to satisfaction of the other conditions set forth below, on the date that the Trustee shall have received written confirmation from all of the Rating Agencies (and any other rating agencies Other Rating Agency that may be rating any Specially Designated Non-Trust Mortgage Loan Securities) that the appointment of such Person will not result in the qualification, downgrading or withdrawal of the rating or ratings assigned an Adverse Rating Event with respect to one or more Classes of the Certificates (or, if applicable, one or more classes of Specially Designated Non-Trust Mortgage Loan Securities); provided that such confirmation need not be obtained from Fitch if the designated Person is rated at least "CSS2" by Fitch as a special servicer). The appointment of such designated Person as Special Servicer shall also be subject to receipt by the Trustee of (1) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit J-2, executed by the designated Person, and (2) an Opinion of Counsel (at the expense of the Person designated to become the Special Servicer) to the effect that the designation of such Person to serve as Special Servicer is in compliance with this Section 6.09 and all other applicable provisions of this Agreement, that upon the execution and delivery of the Acknowledgment of Proposed Special Servicer the designated Person shall be bound by the terms of this Agreement and, subject to customary limitations, that this Agreement shall be enforceable against the designated Person in accordance with its terms. Subject to the provisos to the first sentence of this Section 6.09(a), any existing Special Servicer shall be deemed to have resigned simultaneously with such designated Person's becoming the Special Servicer hereunder; provided, however, that the resigning Special Servicer shall continue to be entitled to receive all amounts accrued or owing to it under this Agreement on or prior to the effective date of such resignation (including Workout Fees earned on Specially Serviced Mortgage Loans which became Corrected Mortgage Loans prior to its resignation or are otherwise payable to the terminated or resigning Special Servicer pursuant to Section 3.11(c)), and it shall continue to be entitled to the benefits of Section 6.03 notwithstanding any such resignation. Such resigning Special Servicer shall cooperate with the Trustee and the replacement Special Servicer in effecting the termination of the resigning Special Servicer's responsibilities and rights hereunder, including, without limitation, the transfer within two (2) Business Days to the replacement Special Servicer for administration by it of all cash amounts that shall at the time be or should have been credited by the Special Servicer to a Collection Account, an A/B SLC Custodial Account, a Servicing Account, a Reserve Account or an REO Account or delivered to the Master Servicers or that are thereafter received with respect to Specially Serviced Mortgage Loans and Administered REO Properties. For purposes of exercising any rights that the holder of the Mortgage Note for any SLC Trust Mortgage Loan may have under the related Co-Lender Agreement to replace and/or appoint a special servicer with respect to the related Serviced Loan Combination, the Holder or, collectively, the Holders of Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class shall be the designee of the Trust, as such noteholder, and the Trustee shall take such actions as may be necessary under the related Co-Lender Agreement to effect such designation. Notwithstanding the foregoing, if the Controlling Class of Certificates consists of Book-Entry Certificates, then the rights of the Holders of the Controlling Class of Certificates set forth above in this Section 6.09 may be exercised directly by the relevant Certificate Owner(s); provided that the identity of such Certificate Owner(s) has been confirmed to the Trustee to its reasonable satisfaction.
(b) For so long as it is the WellPoint Controlling Holder, the WellPoint B-Noteholder may, in accordance with the WellPoint Co-Lender Agreement, upon at least ten (10) Business Days' prior notice to the Special Servicer, the Master Servicers, the Certificate Administrator and the Trustee, with or without cause, terminate the rights and obligations of the Special Servicer hereunder solely with 235 With respect to the WellPoint Alexandria Mall Loan Combination or related REO Property and designate a Person to serve as WellPoint Special Servicer hereunder; provided that the WellPoint B-Noteholder shall pay all reasonable and customary costs and expenses related thereto, to the extent provided under the WellPoint Co-Lender Agreement. The WellPoint B-Noteholder shall so designate a Person to serve as replacement WellPoint Special Servicer by the delivery to the TrusteeCombination, the Master Servicers, the Certificate Administrator and the existing WellPoint Special Servicer of a written notice stating such designation. The Trustee shall, promptly after receiving any such notice, deliver to the Rating Agencies (and any other rating agencies rating Non-Trust Loan Securities backed by a WellPoint Non-Trust Loan or any successor REO B-Note Alexandria Mall Non-Trust Mortgage Loan with respect thereto) an executed Notice and Acknowledgment in Noteholder constituting the form attached hereto as Exhibit J-1. If Alexandria Mall Controlling Party shall be entitled to replace the WellPoint B-Noteholder is the WellPoint Controlling Holder, and if the WellPoint B-Noteholder has not designated a replacement WellPoint Alexandria Mall Special Servicer within 30 days of subject to the predecessor WellPoint Special Servicer having been terminated by Alexandria Mall Co-Lender Agreement and the WellPoint Controlling Holder, then same terms and conditions as would be applicable in such regard to the Holder or Holders Holder(s) of Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class, and the Holders of the Controlling Class or may not replace the Trustee shall designate a successor WellPoint Alexandria Mall Special Servicer until the Trust is the Alexandria Mall Controlling Party.
(c) If a replacement special servicer is appointed with respect to a Serviced Loan Combination or any related REO Property in accordance with Section 6.09(a), subject to removal in accordance with this Section 6.09. Any Person designated by the WellPoint Controlling Holder to act 6.09(b) or 7.01(c) such that there are multiple parties acting as a WellPoint Special Servicer shall become hereunder, then, unless the WellPoint context clearly requires otherwise: (i) when used in the context of imposing duties and obligations on the Special Servicer on hereunder or the date as of which the Trustee shall have received all of the following: (1) written confirmation from all of the Rating Agencies (and any other rating agencies rating Non-Trust Loan Securities backed by a WellPoint B-Note Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect thereto) that the appointment performance of such Person will not result in duties and obligations, the qualificationterm "Special Servicer" shall mean the applicable SLC Special Servicer, downgrading or withdrawal of the rating or ratings assigned to one or more Classes of the Certificates or one or more classes of Non-Trust Loan Securities backed by a WellPoint B-Note Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect thereto; (2) an Acknowledgment of Proposed Special Servicer in the form attached hereto insofar as Exhibit J-2 (modified to specifically such duties and obligations relate to the WellPoint subject Serviced Loan Combination or any related REO Property, and shall mean the General Special Servicer (as defined below), executed by in all other cases (provided that, in Section 3.13, Section 3.14 and Section 3.15, the designated Person; and (3) an Opinion of Counsel (at the expense term "Special Servicer" shall mean each of the Person designated to become SLC Special Servicers and the WellPoint General Special Servicer); (ii) to when used in the effect that context of identifying the designation recipient of such Person as WellPoint any information, funds, documents, instruments and/or other items, the term "Special Servicer is in compliance with this Section 6.09(b) and all other Servicer" shall mean the applicable provisions of this Agreement and the WellPoint Co-Lender Agreement, that, upon the execution and delivery of the Acknowledgment of Proposed WellPoint SLC Special Servicer, the designated Person shall be bound by the terms of this Agreement andinsofar as such information, subject to customary limitationsfunds, that this Agreement shall be enforceable against the designated Person in accordance with its terms. Any existing WellPoint Special Servicer shall be deemed to have resigned simultaneously with such designated Person's becoming the WellPoint Special Servicer hereunder; provideddocuments, however, that (i) the resigning WellPoint Special Servicer shall continue to be entitled to receive all amounts accrued or owing to it under this Agreement on or prior instruments and/or other items relate to the effective date of such resignation, whether in respect of Servicing Advances or otherwise, and (ii) the resigning WellPoint Special Servicer shall continue to be entitled to the benefits of Section 6.03 notwithstanding any such resignation. The outgoing WellPoint Special Servicer shall cooperate with the Trustee and the replacement WellPoint Special Servicer in effecting the termination of the outgoing WellPoint Special Servicer's responsibilities and rights hereunder, including, without limitation, the transfer within two (2) Business Days to the replacement WellPoint Special Servicer for administration by it of all cash amounts relating to the WellPoint subject Serviced Loan Combination or any related REO Property that Property, and shall at mean the time be or should have been credited General Special Servicer, in all other cases; (iii) when used in the context of granting the Special Servicer the right to purchase Defaulted Trust Mortgage Loans pursuant to Section 3.18, the term "Special Servicer" shall mean the General Special Servicer only; (iv) when used in the context of the Special Servicer the right to purchase all of the Trust Mortgage Loans and any REO Properties remaining in the Trust Fund pursuant to Section 9.01, the term "Special Servicer" shall mean the General Special Servicer only; (v) when used in the context of the Special Servicer being replaced, pursuant to Section 6.09(a), by the WellPoint Holder or Holders of a majority of the Voting Rights allocated to the Controlling Class, the term "Special Servicer" shall mean the General Special Servicer to a Collection Accountor each of the SLC Special Servicers, an A/B Custodial Accountas applicable; (vi) when used in the context of granting the Special Servicer any protections, a Servicing Accountlimitations on liability, a Reserve Account or an REO Account or should have been delivered to immunities and/or indemnities hereunder, the Master term "Special Servicer" shall mean each of the SLC Special Servicers or that are thereafter received with respect to the WellPoint Loan Combination and/or any related REO Property. The Trustee shall notify the other parties hereto and the Certificateholders General Special Servicer; and (vii) when used in the context of requiring indemnification from, imposing liability on, or exercising any termination remedies against, the Special Servicer for any breach of a representation, warranty or covenant hereunder or for any negligence, bad faith or willful misconduct in the performance of duties and obligations hereunder or any negligent disregard of such duties and obligations or otherwise holding the Special Servicer responsible for any of the WellPoint Special Servicer and appointment of a new WellPoint Special Servicer in accordance with this Section 6.09(b).foregoing, the term
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2008-C7)
Designation of Special Servicer by the Controlling Class Certificateholders and Others. (a) Subject to the terms of this sectionsection and, in the case of a . Loan Combination, the terms of the related Co-Lender Agreement, the Holder or Holders of the Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class may at any time and from time to time designate a Person meeting the requirements set forth in Section 6.04 (including, without limitation, Rating Agency and, if applicable, Other Rating Agency confirmation) to serve as Special Servicer hereunder and to replace any existing Special Servicer without cause or any Special Servicer that has resigned or otherwise ceased to serve in such capacity; provided that such Holder or Holders shall pay all costs related to the transfer of servicing if the Special Servicer is replaced other than due to an Event of Default; and provided, further, that, for so long as the WellPoint B-Noteholder is the WellPoint Controlling Party, the Holder or Holders of Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class may not terminate or replace any WellPoint Special Servicer appointed by the WellPoint B-Noteholder in accordance with Section 6.09(b). Such Holder or Holders shall so designate a Person to serve as replacement Special Servicer by the delivery to the Trustee, the Certificate Administrator, the Master ServicerServicers, each BServiced Non-Trust Mortgage Loan Noteholder and the existing Special Servicer of a written notice stating such designation. The Trustee shall, promptly after receiving any such notice, deliver to the Rating Agencies (and any other rating agencies Other Rating Agency that may be rating any Specially Designated Non-Trust Mortgage Loan Securities) an executed Notice and Acknowledgment in the form attached hereto as Exhibit J-1. If such Holders have not replaced a Special Servicer within 30 days of such Special Servicer's resignation or the date such Special Servicer has ceased to serve in such capacity, and subject to the prior rights of the WellPoint B-Noteholder (for so long as it is the WellPoint Controlling Partyany Person(s) to appoint a WellPoint Special Servicer special service with respect to any particular Serviced Trust Mortgage Loan or Serviced Loan Combination in accordance with Section 6.09(b), the Trustee shall designate a successor Special Servicer, subject to removal by the Holder or Holders of Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class or as and to the extent otherwise so provided in Section 6.09(b), and appointment of a successor thereto pursuant to the terms of this Section 6.09. Subject to the provisos to the first sentence of this Section 6.09(a), any Person designated pursuant to this Section 6.09(a), whether designated by Holders of the Controlling Class or by the Trustee, shall become the Special Servicer, subject to satisfaction of the other conditions set forth below, on the date that the Trustee shall have received written confirmation from all of the Rating Agencies (and any other rating agencies Other Rating Agency that may be rating any Specially Designated Non-Trust Mortgage Loan Securities) that the appointment of such Person will not result in the qualification, downgrading or withdrawal of the rating or ratings assigned an Adverse Rating Event with respect to one or more Classes of the Certificates (or, if applicable, one or more classes of Specially Designated Non-Trust Mortgage Loan Securities); provided that such confirmation need not be obtained from Fitch if the designated Person is rated at least "CSS2" by Fitch as a special servicer). The appointment of such designated Person as Special Servicer shall also be subject to receipt by the Trustee of (1) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit J-2, executed by the designated Person, and (2) an Opinion of Counsel (at the expense of the Person designated to become the Special Servicer) to the effect that the designation of such Person to serve as Special Servicer is in compliance with this Section 6.09 and all other applicable provisions of this Agreement, that upon the execution and delivery of the Acknowledgment of Proposed Special Servicer the designated Person shall be bound by the terms of this Agreement and, subject to customary limitations, that this Agreement shall be enforceable against the designated Person in accordance with its terms. Subject to the provisos to the first sentence of this Section 6.09(a), any existing Special Servicer shall be deemed to have resigned simultaneously with such designated Person's becoming the Special Servicer hereunder; provided, however, that the resigning Special Servicer shall continue to be entitled to receive all amounts accrued or owing to it under this Agreement on or prior to the effective date of such resignation (including Workout Fees earned on Specially Serviced Mortgage Loans which became Corrected Mortgage Loans prior to its resignation or are otherwise payable to the terminated or resigning Special Servicer pursuant to Section 3.11(c)), and it shall continue to be entitled to the benefits of Section 6.03 notwithstanding any such resignation. Such resigning Special Servicer shall cooperate with the Trustee and the replacement Special Servicer in effecting the termination of the resigning Special Servicer's responsibilities and rights hereunder, including, without limitation, the transfer within two (2) Business Days to the replacement Special Servicer for administration by it of all cash amounts that shall at the time be or should have been credited by the Special Servicer to a Collection Account, an A/B SLC Custodial Account, a Servicing Account, a Reserve Account or an REO Account or delivered to the Master Servicers or that are thereafter received with respect to Specially Serviced Mortgage Loans and Administered REO Properties. For purposes of exercising any rights that the holder of the Mortgage Note for any SLC Trust Mortgage Loan may have under the related Co-Lender Agreement to replace and/or appoint a special servicer with respect to the related Serviced Loan Combination, the Holder or, collectively, the Holders of Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class shall be the designee of the Trust, as such noteholder, and the Trustee shall take such actions as may be necessary under the related Co-Lender Agreement to effect such designation. Notwithstanding the foregoing, if the Controlling Class of Certificates consists of Book-Entry Certificates, then the rights of the Holders of the Controlling Class of Certificates set forth above in this Section 6.09 may be exercised directly by the relevant Certificate Owner(s); provided that the identity of such Certificate Owner(s) has been confirmed to the Trustee to its reasonable satisfaction.
(b) Pursuant to Section 2(j) of the 000 Xxxx Xxxxxxx Co-Lender Agreement, the termination of the Special Servicer and the appointment of successor Special Servicer with respect to the 000 Xxxx Xxxxxxx Loan Combination must be consented to by (i) a majority of the holders of the Controlling Class and (ii)(x) a majority of the holders of the controlling class of each of the 000 Xxxx Xxxxxxx Non-Trust Mortgage Loans (to the extent that any of such loans are included in a securitization or (y) if such loan or loans are not included in a securitization, the majority of the holders of each of the 000 Xxxx Xxxxxxx Non-Trust Mortgage Loans, as applicable. For so long as it is the WellPoint Greensboro Corporate Center Controlling HolderParty, the WellPoint B-Noteholder may, in accordance with the WellPoint Co-Lender Agreement, upon at least ten (10) Business Days' prior notice to the Special Servicer, the Master Servicers, the Certificate Administrator and the Trustee, with or without cause, terminate the rights and obligations of the Special Servicer hereunder solely with 235 respect to the WellPoint Loan Combination or related REO Property and designate a Person to serve as WellPoint Special Servicer hereunder; provided that the WellPoint B-Noteholder shall pay all reasonable and customary costs and expenses related thereto, to the extent provided under the WellPoint Co-Lender Agreement. The WellPoint B-Noteholder shall so designate a Person to serve as replacement WellPoint Special Servicer by the delivery to the Trustee, the Master Servicers, the Certificate Administrator and the existing WellPoint Special Servicer of a written notice stating such designation. The Trustee shall, promptly after receiving any such notice, deliver to the Rating Agencies (and any other rating agencies rating Non-Trust Loan Securities backed by a WellPoint Non-Trust Loan or any successor REO B-Note Non-Trust Mortgage Loan with respect thereto) an executed Notice and Acknowledgment in Noteholder shall be entitled to replace the form attached hereto as Exhibit J-1. If the WellPoint B-Noteholder is the WellPoint Controlling Holder, and if the WellPoint B-Noteholder has not designated a replacement WellPoint Greensboro Corporate Center Special Servicer within 30 days of subject to the predecessor WellPoint Special Servicer having been terminated by Greensboro Corporate Center Co-Lender Agreement and the WellPoint Controlling Holder, then same terms and conditions as would be applicable in such regard to the Holder or Holders Holder(s) of Certificates evidencing a majority of the Voting Rights allocated to the Controlling Class, and the Holders of the Controlling Class or may not replace the Trustee shall designate a successor WellPoint Special Servicer in accordance with Section 6.09(a)for the Greensboro Corporate Center Loan Combination until the Trust is the Greensboro Corporate Center Controlling Party. With respect to the DDR Southeast Pool Loan Combination, subject the Controlling Class Representative is required to removal in accordance with this Section 6.09. Any Person designated by consult with, but is not obligated to follow the WellPoint Controlling Holder to act as a WellPoint Special Servicer shall become advice of, the WellPoint Special Servicer on the date as controlling class representative of which the Trustee shall have received all each of the following: (1) written confirmation from all of the Rating Agencies (and any other rating agencies rating DDR Southeast Pool Non-Trust Loan Securities backed by Mortgage Loans (to the extent that any of such loans are included in a WellPoint B-Note securitization) or, if such loan or loans are not included in a securitization, the related DDR Southeast Pool Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect thereto) that Noteholders, as applicable, prior to the termination of the Special Servicer and the appointment of a successor Special Servicer.
(c) If a replacement special servicer is appointed with respect to a Serviced Loan Combination or any related REO Property in accordance with Section 6.09(b) or 7.01(c) such Person will not result that there are multiple parties acting as Special Servicer hereunder, then, unless the context clearly requires otherwise: (i) when used in the qualification, downgrading or withdrawal context of imposing duties and obligations on the rating or ratings assigned to one or more Classes of the Certificates or one or more classes of Non-Trust Loan Securities backed by a WellPoint B-Note Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect thereto; (2) an Acknowledgment of Proposed Special Servicer in hereunder or the form attached hereto performance of such duties and obligations, the term "Special Servicer" shall mean the applicable SLC Special Servicer, insofar as Exhibit J-2 (modified to specifically such duties and obligations relate to the WellPoint subject Serviced Loan Combination or any related REO Property, and shall mean the General Special Servicer (as defined below), executed by the designated Person; and (3) an Opinion of Counsel (at the expense of the Person designated to become the WellPoint Special Servicer) to the effect that the designation of such Person as WellPoint Special Servicer is in compliance with this Section 6.09(b) and all other applicable provisions of this Agreement and the WellPoint Co-Lender Agreement, cases (provided that, upon the execution in Section 3.13, Section 3.14 and delivery of the Acknowledgment of Proposed WellPoint Special ServicerSection 3.15, the designated Person shall be bound by the terms of this Agreement and, subject to customary limitations, that this Agreement shall be enforceable against the designated Person in accordance with its terms. Any existing WellPoint Special Servicer shall be deemed to have resigned simultaneously with such designated Person's becoming the WellPoint Special Servicer hereunder; provided, however, that (i) the resigning WellPoint Special Servicer shall continue to be entitled to receive all amounts accrued or owing to it under this Agreement on or prior to the effective date of such resignation, whether in respect of Servicing Advances or otherwise, and (ii) the resigning WellPoint Special Servicer shall continue to be entitled to the benefits of Section 6.03 notwithstanding any such resignation. The outgoing WellPoint Special Servicer shall cooperate with the Trustee and the replacement WellPoint Special Servicer in effecting the termination of the outgoing WellPoint Special Servicer's responsibilities and rights hereunder, including, without limitation, the transfer within two (2) Business Days to the replacement WellPoint Special Servicer for administration by it of all cash amounts relating to the WellPoint Loan Combination or any related REO Property that shall at the time be or should have been credited by the WellPoint Special Servicer to a Collection Account, an A/B Custodial Account, a Servicing Account, a Reserve Account or an REO Account or should have been delivered to the Master Servicers or that are thereafter received with respect to the WellPoint Loan Combination and/or any related REO Property. The Trustee shall notify the other parties hereto and the Certificateholders of any termination of the WellPoint Special Servicer and appointment of a new WellPoint Special Servicer in accordance with this Section 6.09(b).term
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2007-C6)
