Replacement of Special Servicer. (a) During any Subordinate Control Period, the Majority Subordinate Certificateholder, or the Subordinate Class Representative on its behalf, will have the right to terminate the Special Servicer, with or without cause, and appoint itself or an Affiliate thereof or another Person as the successor Special Servicer. It shall be a condition to such appointment that (i) the successor Special Servicer be a Qualified Replacement Special Servicer (ii) the successor Special Servicer deliver to the Depositor and each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii) the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice to each of the parties to this Agreement that such appointment is void. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator and the Trustee of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders) and the equivalent from each NRSRO hired to provide ratings with respect to any Serviced Companion Loan Securities, the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis, the Trustee shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, during any Senior Consultation Period, if the Trust Advisor determines, in its sole discretion exercised in good faith, that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional information as it deems appropriate) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the then-current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). Any such termination of an existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed removal and replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s recommendation for replacement of, or determination not to recommend the replacement of, the Special Servicer under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement. (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to this Section 6.05 shall be effective until the Trustee shall have received (A) a Rating Agency Confirmation from each Rating Agency (and, in the case of any Serviced Loan Combination, an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable pursuant to Section 3.27(k)) with respect to such removal and/or appointment, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to that terminated Special Servicer, and (C) an Opinion of Counsel (the expense of which shall be deemed to be part of the expenses of the replacement) substantially to the effect that (1) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (2) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (3) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms. (f) The Special Servicer terminated pursuant to this Section 6.05 shall be deemed to have been so terminated simultaneously with the designated successor’s becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection Account of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to such terminated Special Servicer of all outstanding Servicing Advances made by such terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to such terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that such terminated Special Servicer had actually made them), (ii) such terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that such terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. Such terminated Special Servicer shall cooperate (time being of the essence in connection with a termination under Section 6.05(b)) with the Trustee and the replacement to such terminated Special Servicer in effecting the transfer of such terminated Special Servicer’s responsibilities and rights hereunder to its successor, including the transfer within two (2) Business Days of its termination becoming effective pursuant to this Section 6.05, to the replacement to such terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by such terminated Special Servicer to the REO Account maintained by it or to any Servicing Account or Reserve Account or should have been delivered to the Master Servicer or that are thereafter received by or on behalf of such terminated Special Servicer with respect to any Mortgage Loan or REO Property. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05.

Appears in 5 contracts

Samples: Pooling and Servicing Agreement (COMM 2015-Lc19 Mortgage Trust), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-C29), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-Lc20)

Replacement of Special Servicer. (a) During any Subordinate Control ~~Period~~Period (and other than with respect to any Excluded Loan), the Majority Subordinate Certificateholder, or the Subordinate Class Representative on its behalf, will have the right to terminate the Special Servicer, with or without cause, and appoint itself or an Affiliate thereof or another Person as the successor Special Servicer. It shall be a condition to such appointment that (i) the successor Special Servicer be a Qualified Replacement Special Servicer (ii) the successor Special Servicer deliver to the Depositor and each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii) the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice to each of the parties to this Agreement that such appointment is void. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator and the Trustee of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders) and the equivalent from each NRSRO hired to provide ratings with respect to any Serviced Companion Loan Securities, the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis, the Trustee shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, during any Senior Consultation Period, if the Trust Advisor determines, in its sole discretion exercised in good faith, that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional information as it deems appropriate) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the then-current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). Any such termination of an existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed removal and replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s recommendation for replacement of, or determination not to recommend the replacement of, the Special Servicer under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement. (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to this Section 6.05 shall be effective until the Trustee shall have received (A) a Rating Agency Confirmation from each Rating Agency (and, in the case of any Serviced Loan Combination, an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable pursuant to Section 3.27(k)) with respect to such removal and/or appointment, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to that terminated Special Servicer, and (C) an Opinion of Counsel (the expense of which shall be deemed to be part of the expenses of the replacement) substantially to the effect that (1) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (2) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (3) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms. (f) The Special Servicer terminated pursuant to this Section 6.05 shall be deemed to have been so terminated simultaneously with the designated successor’s becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection Account of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to such terminated Special Servicer of all outstanding Servicing Advances made by such terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to such terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that such terminated Special Servicer had actually made them), (ii) such terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that such terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. Such terminated Special Servicer shall cooperate (time being of the essence in connection with a termination under Section 6.05(b)) with the Trustee and the replacement to such terminated Special Servicer in effecting the transfer of such terminated Special Servicer’s responsibilities and rights hereunder to its successor, including the transfer within two (2) Business Days of its termination becoming effective pursuant to this Section 6.05, to the replacement to such terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by such terminated Special Servicer to the REO Account maintained by it or to any Servicing Account or Reserve Account or should have been delivered to the Master Servicer or that are thereafter received by or on behalf of such terminated Special Servicer with respect to any Mortgage Loan or REO Property. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05.Fund

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-C28), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-C29), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-Nxs1)

Replacement of Special Servicer. (a) During any Subordinate Control Period, the Majority Subordinate Certificateholder, or the Subordinate Class Representative on its behalf, will have the right to terminate the Special Servicer, with or without cause, and appoint itself or an Affiliate thereof or another Person as the successor Special Servicer. It shall be a condition to such appointment that ~~(i)~~ the successor Special Servicer be a Qualified Replacement Special Servicer ~~(ii) the successor Special Servicer deliver to the Depositor~~ and ~~each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii)~~ the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice to each of the parties to this Agreement that such appointment is void. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator ~~and the Trustee~~ of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders~~) and the equivalent from each NRSRO hired to provide ratings with respect to any Serviced Companion Loan Securities~~), the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all ~~Principal Balance~~ Certificates on an aggregate basis, the ~~Trustee~~ Certificate Administrator shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, during any Senior Consultation Period, if the Trust Advisor ~~determines, in its sole discretion exercised in good faith,~~ determines that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit ~~O-3~~ O-2 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional ~~information as it deems appropriate~~information) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all ~~Principal Balance~~ Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the ~~then-~~then current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies ~~(and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable)~~ with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies ~~(and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable)~~ (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). ~~Any such~~ The termination of an the existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed ~~removal and~~ replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s ~~recommendation for replacement of, or~~ determination ~~not to recommend the replacement of, the Special Servicer~~ under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement.[Reserved] (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to this Section 6.05 shall be effective until the Trustee shall have received (A) a Rating Agency Confirmation from each Rating Agency ~~(and, in the case of any Serviced Loan Combination, an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable pursuant to Section 3.27(k))~~ with respect to such removal and/or appointment, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to ~~that~~ the terminated Special Servicer, and (C) an Opinion of Counsel (the expense of which shall be deemed to be part of the expenses of the replacement) substantially to the effect that (1) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (2) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (3) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms. (f) ~~The~~ Any Special Servicer terminated pursuant to this Section 6.05 shall be deemed to have been so terminated simultaneously with the designated successor’s becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection Account of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to such terminated Special Servicer of all outstanding Servicing Advances made by such terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to such terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that such terminated Special Servicer had actually made them), (ii) such terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that such terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. Such terminated Special Servicer shall cooperate (time being of the essence in connection with a termination under Section 6.05(b)) with the Trustee and the replacement to such terminated Special Servicer in effecting the transfer of such terminated Special Servicer’s responsibilities and rights hereunder to its successor, including the transfer within two (2) Business Days of its termination becoming effective pursuant to this Section 6.05, to the replacement to such terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by such terminated Special Servicer to the REO Account maintained by it or to any Servicing Account or Reserve Account or should have been delivered to the Master Servicer or that are thereafter received by or on behalf of such terminated Special Servicer with respect to any Mortgage Loan or REO Property. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C8), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C7), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C7)

Replacement of Special Servicer. (a) During any Subordinate Control Period, the Majority Subordinate Certificateholder, or the Subordinate Class Representative on its behalf, will have the right to terminate the Special Servicer, with or without cause, and appoint itself or an Affiliate thereof or another Person as the successor Special Servicer. It shall be a condition to such appointment that ~~(i)~~ the successor Special Servicer be a Qualified Replacement Special Servicer ~~(ii) the successor Special Servicer deliver to the Depositor~~ and ~~each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii)~~ the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice to each of the parties to this Agreement that such appointment is void. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator ~~and the Trustee~~ of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders) and the equivalent from each ~~NRSRO~~ Rating Agency hired to provide ratings with respect to any commercial mortgage-backed securities backed by any Serviced Pari Passu Companion ~~Loan Securities~~Loan, the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis, the ~~Trustee~~ Certificate Administrator shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, during any Senior Consultation Period, if the Trust Advisor determines, in its sole discretion exercised in good faith, that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of ~~the~~ such Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional information as it deems appropriate) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the then-current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies ~~(and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable)~~ with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies (~~and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) (~~and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of ~~the~~ such Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders ~~and~~ and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). Any such termination of an existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed removal and replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s ~~recommendation for replacement of, or~~ determination ~~not to recommend the replacement of, the Special Servicer~~ under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement[Reserved]. (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to this Section 6.05 shall be effective until the Trustee shall have received (A) a Rating Agency Confirmation from each Rating Agency ~~(and, in the case of any Serviced Loan Combination, an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable pursuant to Section 3.27(k))~~ with respect to such removal and/or appointment, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to that terminated Special Servicer, and (C) an Opinion of Counsel (the expense of which shall be deemed to be part of the expenses of the replacement) substantially to the effect that (1) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (2) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (3) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms. (f) ~~The~~ Any Special Servicer terminated pursuant to this Section 6.05 shall be deemed to have been so terminated simultaneously with the designated successor’s becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection Account of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to such terminated Special Servicer of all outstanding Servicing Advances made by such terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to such terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that such terminated Special Servicer had actually made them), (ii) such terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that such terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. Such terminated Special Servicer shall cooperate (time being of the essence in connection with a termination under Section 6.05(b)) with the Trustee and the replacement to such terminated Special Servicer in effecting the transfer of such terminated Special Servicer’s responsibilities and rights hereunder to its successor, including the transfer within two (2) Business Days of its termination becoming effective pursuant to this Section 6.05, to the replacement to such terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by such terminated Special Servicer to the REO Account maintained by it or to any Servicing Account or Reserve Account or should have been delivered to the Master Servicer or that are thereafter received by or on behalf of such terminated Special Servicer with respect to any Mortgage Loan or REO Property. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (SG Commercial Mortgage Securities, LLC), Pooling and Servicing Agreement (SG Commercial Mortgage Securities, LLC), Pooling and Servicing Agreement (RBS Commercial Funding Inc.)

Replacement of Special Servicer. (a) During any Subordinate Control Period, the Majority Subordinate Certificateholder, or the Subordinate Class Representative on its behalf, will have the right to terminate the Special Servicer, with or without cause, and appoint itself or an Affiliate thereof or another Person as the successor Special Servicer. It shall be a condition to such appointment that ~~(i)~~ the successor Special Servicer be a Qualified Replacement Special Servicer ~~(ii) the successor Special Servicer deliver to the Depositor~~ and ~~each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii)~~ the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice to each of the parties to this Agreement that such appointment is void. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator ~~and the Trustee~~ of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders~~) and the equivalent from each NRSRO hired to provide ratings with respect to any Serviced Companion Loan Securities~~), the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all ~~Principal Balance~~ Certificates on an aggregate basis, the ~~Trustee~~ Certificate Administrator shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, during any Senior Consultation Period, if the Trust Advisor ~~determines, in its sole discretion exercised in good faith,~~ determines that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional ~~information as it deems appropriate~~information) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all ~~Principal Balance~~ Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the ~~then-~~then current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies ~~(and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable)~~ with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies ~~(and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable)~~ (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). ~~Any such~~ The termination of an the existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed ~~removal and~~ replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s ~~recommendation for replacement of, or~~ determination ~~not to recommend the replacement of, the Special Servicer~~ under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement.[Reserved] (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to this Section 6.05 shall be effective until the Trustee shall have received (A) a Rating Agency Confirmation from each Rating Agency ~~(and, in the case of any Serviced Loan Combination, an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable pursuant to Section 3.27(k))~~ with respect to such removal and/or appointment, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to ~~that~~ the terminated Special Servicer, and (C) an Opinion of Counsel (the expense of which shall be deemed to be part of the expenses of the replacement) substantially to the effect that (1) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (2) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (3) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms. (f) ~~The~~ Any Special Servicer terminated pursuant to this Section 6.05 shall be deemed to have been so terminated simultaneously with the designated successor’s becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection Account of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to such terminated Special Servicer of all outstanding Servicing Advances made by such terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to such terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that such terminated Special Servicer had actually made them), (ii) such terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that such terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. Such terminated Special Servicer shall cooperate (time being of the essence in connection with a termination under Section 6.05(b)) with the Trustee and the replacement to such terminated Special Servicer in effecting the transfer of such terminated Special Servicer’s responsibilities and rights hereunder to its successor, including the transfer within two (2) Business Days of its termination becoming effective pursuant to this Section 6.05, to the replacement to such terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by such terminated Special Servicer to the REO Account maintained by it or to any Servicing Account or Reserve Account or should have been delivered to the Master Servicer or that are thereafter received by or on behalf of such terminated Special Servicer with respect to any Mortgage Loan or REO Property. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C9), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C9)

Replacement of Special Servicer. (a) During any Subordinate Control Period, the Majority Subordinate Certificateholder, or the Subordinate Class Representative on its behalf, will have the right to terminate the Special Servicer, with or without cause, and appoint itself or an Affiliate thereof or another Person as the successor Special Servicer. It shall be a condition to such appointment that ~~(i)~~ the successor Special Servicer be a Qualified Replacement Special Servicer ~~(ii) the successor Special Servicer deliver to the Depositor~~ and ~~each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii)~~ the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice to each of the parties to this Agreement that such appointment is void. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator ~~and the Trustee~~ of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders) and the equivalent from each NRSRO hired to provide ratings with respect to any Serviced Pari Passu Companion Loan Securities, the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis, the Trustee shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, during any Senior Consultation Period, if the Trust Advisor determines, in its sole discretion exercised in good faith, that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional information as it deems appropriate) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the then-current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Pari Passu Companion ~~Loan~~ Rating Agency, if applicable) with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Pari Passu Companion ~~Loan~~ Rating Agency, if applicable) (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). Any such termination of an existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed removal and replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s ~~recommendation for replacement of, or~~ determination ~~not to recommend the replacement of, the Special Servicer~~ under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement[Reserved.] (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to this Section 6.05 shall be effective until the Trustee shall have received (A) a Rating Agency Confirmation from each Rating Agency (and, in the case of any Serviced Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion ~~Loan~~ Rating Agency, if applicable pursuant to Section 3.27(k)) with respect to such removal and/or appointment, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to that terminated Special Servicer, and (C) an Opinion of Counsel (the expense of which shall be deemed to be part of the expenses of the replacement) substantially to the effect that (1) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (2) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (3) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms. (f) The Special Servicer terminated pursuant to this Section 6.05 shall be deemed to have been so terminated simultaneously with the designated successor’s becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection Account of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to such terminated Special Servicer of all outstanding Servicing Advances made by such terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to such terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that such terminated Special Servicer had actually made them), (ii) such terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that such terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. Such terminated Special Servicer shall cooperate (time being of the essence in connection with a termination under Section 6.05(b)) with the Trustee and the replacement to such terminated Special Servicer in effecting the transfer of such terminated Special Servicer’s responsibilities and rights hereunder to its successor, including the transfer within two (2) Business Days of its termination becoming effective pursuant to this Section 6.05, to the replacement to such terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by such terminated Special Servicer to the REO Account maintained by it or to any Servicing Account or Reserve Account or should have been delivered to the Master Servicer or that are thereafter received by or on behalf of such terminated Special Servicer with respect to any Mortgage Loan or REO Property. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2014-Lc18), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-C25)

Replacement of Special Servicer. (a) ~~During any Subordinate Control Period~~Subject to Section 3.25(b), the ~~Majority Subordinate Certificateholder, or the Subordinate~~ Controlling Class Representative ~~on its behalf~~may, ~~will have~~ upon not less than ten days' prior written notice to the ~~right to terminate the~~ respective parties hereto, remove any existing Special ~~Servicer,~~ Servicer hereunder (with or without cause~~, and appoint itself or an Affiliate thereof or another Person as the successor Special Servicer. It shall be a condition to such appointment that (i~~) the successor Special Servicer be a Qualified Replacement Special Servicer (ii) the successor Special Servicer deliver to the Depositor and each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii) the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice to each of the parties to this Agreement that such appointment is void. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer; provided that, ~~(ii) payment by~~ if any such ~~Holders~~ removal is made without cause, then the costs of transferring the special servicing responsibilities to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator and the Trustee of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders) and the equivalent from each NRSRO hired to provide ratings with respect to any Serviced Companion Loan Securities, the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis, the Trustee shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer ~~that was proposed~~ will, upon such removal or other termination, be paid by the Certificateholders ~~requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction~~ of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator)Controlling Class. (c) In addition, during any Senior Consultation Period, if the Trust Advisor determines, in its sole discretion exercised in good faith, that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional information as it deems appropriate) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the then-current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). Any such termination of an existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed removal and replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s recommendation for replacement of, or determination not to recommend the replacement of, the Special Servicer under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement. (eb) No removal of the Special Servicer ~~and/or~~ and appointment of a successor thereto pursuant to ~~this~~ Section ~~6.05~~ 3.25(a) shall be effective ~~until~~ until: (i) the Trustee shall have received (A) ~~a Rating Agency Confirmation from each Rating Agency (and, in the case of any Serviced Loan Combination, an analogous rating agency~~ written confirmation from each ~~Companion Loan~~ of the Rating ~~Agency, if applicable pursuant to Section 3.27(k))~~ Agencies that such removal and appointment will not result in an Adverse Rating Event with respect to ~~such removal and/or appointment~~any Class of Rated Certificates, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor ~~to that terminated~~ Special Servicer, and (C) an Opinion of Counsel (~~the~~ which shall not be an expense of ~~which shall be deemed to be part of~~ the ~~expenses of~~ Trustee or the ~~replacement~~Trust) substantially to the effect that (1) the removal of such existing Special Servicer and the appointment of the Person designated to serve as successor Special Servicer is in compliance with this Section 3.25, (2) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (23) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (34) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms; and (ii) if such existing Special Servicer has been removed by the Controlling Class Representative without cause, the Certificateholders of the Controlling Class have delivered to the Trustee and the terminated Special Servicer such Certificateholders' joint and several undertaking to pay any expenses incurred by the Trustee and such terminated Special Servicer in connection with the transfer of special servicing responsibilities to a successor Special Servicer. (fc) ~~The~~ Any Special Servicer terminated pursuant to ~~this~~ Section ~~6.05~~ 3.25(a) shall be deemed to have been so terminated simultaneously with the designated successor’s 's becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection Account of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor ~~to such terminated~~ Special Servicer of all outstanding Servicing Advances made by ~~such~~ the terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor ~~to such terminated~~ Special Servicer shall be deemed to have made such Servicing Advances at the same time that ~~such~~ the terminated Special Servicer had actually made them), (ii) ~~such~~ the terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that ~~such~~ the terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. Such terminated Special Servicer shall cooperate ~~(time being of the essence in connection with a termination under Section 6.05(b))~~ with the Trustee and the replacement ~~to such terminated~~ Special Servicer in effecting the transfer of ~~such~~ the terminated Special Servicer’s 's responsibilities and rights hereunder to its successor, including the transfer within two ~~(2)~~ Business Days of its termination becoming effective pursuant to ~~this~~ Section ~~6.05~~3.25, to the replacement ~~to such terminated~~ Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by ~~such~~ the terminated Special Servicer to the REO Account ~~maintained by it~~ or to any Servicing Account or Reserve Account or should have been delivered to the Master Servicer or that are thereafter received by or on behalf of ~~such~~ the terminated Special Servicer with respect to any Mortgage Loan or REO Property~~. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05~~.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp), Pooling and Servicing Agreement (Credit Suisse Commercial Mortgage Trust Series 2006-C3)

Replacement of Special Servicer. (a) During any Subordinate Control Period, the Majority Subordinate Certificateholder, or the Subordinate Class Representative on its ~~behalf~~behalf (other than with respect to the St. Xxxxx Town Center Loan Combination prior to the occurrence and continuance of a Class SJ Control Appraisal Period with respect to the senior-most Class of Control-Eligible Loan-Specific Certificates), will have the right to terminate the Special Servicer, with or without ~~cause~~cause (in each case, other than in respect of any Non-Trust-Serviced Pooled Mortgage Loan), and appoint itself or an Affiliate thereof or another Person as the successor Special Servicer. It shall be a condition to such appointment that ~~(i)~~ the successor Special Servicer be a Qualified Replacement Special Servicer ~~(ii) the successor Special Servicer deliver to the Depositor~~ and ~~each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii)~~ the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice to each of the parties to this Agreement that such appointment is void. (b) During any Collective Consultation Period or Senior Consultation ~~Period~~Period (other than with respect to the St. Xxxxx Town Center Loan Combination prior to the occurrence and continuance of a Class SJ Control Appraisal Period with respect to the senior-most Class of Control-Eligible Loan-Specific Certificates), upon (i) the written direction of Holders of Pooled Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Pooled Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Pooled Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator ~~and the Trustee~~ of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders) and the equivalent from each NRSRO hired to provide ratings with respect to any Serviced Pari Passu Companion Loan Securities, the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Pooled Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Pooled Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Pooled Principal Balance Certificates on an aggregate basis, the Trustee shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, with respect to the Mortgage Loans (other than with respect to any Non-Trust-Serviced Pooled Mortgage Loan), during any Senior Consultation ~~Period~~Period (but, with respect to the St. Xxxxx Town Center Loan Combination, only after the occurrence and during the continuance of a Class SJ Control Appraisal Period with respect to the senior-most Class of Control-Eligible Loan-Specific Certificates), if the Trust Advisor determines, in its sole discretion exercised in good faith, that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional information as it deems appropriate) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Pooled Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Pooled Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the then-current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Pari Passu Companion ~~Loan~~ Rating Agency, if applicable) with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Pari Passu Companion ~~Loan~~ Rating Agency, if applicable) (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). Any such termination of an existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed removal and replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s ~~recommendation for replacement of, or~~ determination ~~not to recommend the replacement of, the Special Servicer~~ under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) ~~Notwithstanding anything herein~~ With respect to the ~~contrary~~St. Xxxxx Town Center Loan Combination, prior to the occurrence and continuance of a Class SJ Control Appraisal Period with respect to the senior-most Class of Control-Eligible Loan-Specific Certificates, the Loan-Specific Majority Subordinate Certificateholder, or the Loan-Specific Subordinate Class Representative on its behalf, will have the right to terminate the Special Servicer, with or without cause, with respect to ~~each Serviced~~ the St. Xxxxx Town Center Loan Combination and, subject to the last sentence of this subsection (d), appoint itself or an Affiliate thereof or another Person as the successor Special Servicer. During the occurrence and continuance of any such Class SJ Control Appraisal Period, the Special Servicer may be replaced with respect to ~~which~~ the ~~related Serviced Companion~~ St. Xxxxx Town Center Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder Combination as otherwise described in this Section 6.05. It shall be ~~entitled~~ a condition to ~~replace~~ any appointment in this subsection (d) that the successor Special Servicer ~~with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no~~ be a Qualified Replacement Special Servicer ~~appointed by such related Serviced Companion Loan Holder~~ and the conditions set forth in subsection (~~or its representative~~e) ~~with respect to such Serviced Loan Combination may~~ be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreementsatisfied. (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to this Section 6.05 shall be effective until the Trustee shall have received (A) a Rating Agency Confirmation from each Rating Agency (and, in the case of any Serviced Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion ~~Loan~~ Rating Agency, if applicable pursuant to Section 3.27(k)) with respect to such removal and/or appointment, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to that terminated Special Servicer, and (C) an Opinion of Counsel (the expense of which shall be deemed to be part of the expenses of the replacement) substantially to the effect that (1) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (2) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (3) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms. (f) The Special Servicer terminated pursuant to this Section 6.05 shall be deemed to have been so terminated simultaneously with the designated successor’s becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection Account of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to such terminated Special Servicer of all outstanding Servicing Advances made by such terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to such terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that such terminated Special Servicer had actually made them), (ii) such terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that such terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. Such terminated Special Servicer shall cooperate (time being of the essence in connection with a termination under Section 6.05(b)) with the Trustee and the replacement to such terminated Special Servicer in effecting the transfer of such terminated Special Servicer’s responsibilities and rights hereunder to its successor, including the transfer within two (2) Business Days of its termination becoming effective pursuant to this Section 6.05, to the replacement to such terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by such terminated Special Servicer to the REO Account maintained by it or to any Servicing Account or Reserve Account or should have been delivered to the Master Servicer or that are thereafter received by or on behalf of such terminated Special Servicer with respect to any Mortgage Loan or REO Property. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-C25), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-C24)

Replacement of Special Servicer. (a) During any Subordinate Control Period, the Majority Subordinate Certificateholder, or the Subordinate Class Representative on its behalf, will have the right to terminate the Special Servicer, with or without cause, and appoint itself or an Affiliate thereof or another Person as the successor Special Servicer. It ~~shall~~ will be a condition to such appointment that (i) the successor Special Servicer be a Qualified Replacement Special Servicer (ii) the successor Special Servicer deliver to the Depositor and each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii) the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice to each of the parties to this Agreement that such appointment is void. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the ~~aggregate~~ Voting Rights (taking into account the allocation of ~~any~~ Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance ~~Certificates to which such Appraisal Reduction Amounts are allocable~~Certificates) ~~of all Certificates on an aggregate basis,~~ requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator ~~and the Trustee~~ of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders~~) and the equivalent from each NRSRO hired to provide ratings with respect to any Serviced Companion Loan Securities~~), the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of ~~any~~ Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance ~~Certificates to which such Appraisal Reduction Amounts are allocable~~Certificates) of all Principal Balance Certificates on an aggregate basis, the ~~Trustee~~ Certificate Administrator shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further ~~conditioned~~ conditioned, however, on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, during any Senior Consultation Period, if the Trust Advisor ~~determines, in its sole discretion exercised in good faith,~~ determines that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional ~~information as it deems appropriate~~information) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the ~~allocation~~ application of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance ~~Certificates to which such Appraisal Reduction Amounts are allocable~~Certificates) of all Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the ~~then-~~then current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies ~~(and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable)~~ with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies ~~(and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable)~~ (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). ~~Any such~~ The termination of an the existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed ~~removal and~~ replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s ~~recommendation for replacement of, or~~ determination ~~not to recommend the replacement of, the Special Servicer~~ under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement[Reserved.] (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to this Section 6.05 shall be effective until the Trustee shall have received (A) a Rating Agency Confirmation from each Rating Agency ~~(and, in the case of any Serviced Loan Combination, an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable pursuant to Section 3.27(k))~~ with respect to such removal and/or appointment, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to ~~that~~ the terminated Special Servicer, and (C) an Opinion of Counsel (the expense of which shall be deemed to be part of the expenses of the replacement) substantially to the effect that (1) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (2) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (3) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms. (f) ~~The~~ Any Special Servicer terminated pursuant to this Section 6.05 shall be deemed to have been so terminated simultaneously with the designated successor’s becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection Account of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to such terminated Special Servicer of all outstanding Servicing Advances made by such terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to such terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that such terminated Special Servicer had actually made them), (ii) such terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that such terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. Such terminated Special Servicer shall cooperate (time being of the essence in connection with a termination under Section 6.05(b)) with the Trustee and the replacement to such terminated Special Servicer in effecting the transfer of such terminated Special Servicer’s responsibilities and rights hereunder to its successor, including the transfer within two (2) Business Days of its termination becoming effective pursuant to this Section 6.05, to the replacement to such terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by such terminated Special Servicer to the REO Account maintained by it or to any Servicing Account or Reserve Account or should have been delivered to the Master Servicer or that are thereafter received by or on behalf of such terminated Special Servicer with respect to any Mortgage Loan or REO Property. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2011-C5), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2011-C5)

Replacement of Special Servicer. (a) During any Subordinate Control Period, the Majority Subordinate Certificateholder, or the Subordinate Class Representative on its behalf, will have the right to terminate the Special Servicer, with or without cause, and appoint itself or an Affiliate thereof or another Person as the successor Special Servicer. It shall be a condition to such appointment that ~~(i)~~ the successor Special Servicer be a Qualified Replacement Special Servicer ~~(ii) the successor Special Servicer deliver to the Depositor~~ and ~~each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii)~~ the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice to each of the parties to this Agreement that such appointment is void. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator ~~and the Trustee~~ of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders) and the equivalent from each ~~NRSRO~~ Rating Agency hired to provide ratings with respect to any commercial mortgage-backed securities backed by the Serviced Pari Passu Companion ~~Loan Securities~~Loan, the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis, the ~~Trustee~~ Certificate Administrator shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, during any Senior Consultation Period, if the Trust Advisor ~~determines, in its sole discretion exercised in good faith,~~ determines that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional ~~information as it deems appropriate~~information) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the ~~then-~~then current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies ~~(and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable)~~ with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies ~~(and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable)~~ (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). ~~Any such~~ The termination of an the existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed ~~removal and~~ replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s ~~recommendation for replacement of, or~~ determination ~~not to recommend the replacement of, the Special Servicer~~ under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement. (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to this Section 6.05 shall be effective until the Trustee shall have received (A) a Rating Agency Confirmation from each Rating Agency (and, in the case of any Serviced Loan Combination, an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable pursuant to Section 3.27(k)) with respect to such removal and/or appointment, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to that terminated Special Servicer, and (C) an Opinion of Counsel (the expense of which shall be deemed to be part of the expenses of the replacement) substantially to the effect that (1) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (2) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (3) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms. (f) The Special Servicer terminated pursuant to this Section 6.05 shall be deemed to have been so terminated simultaneously with the designated successor’s becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection Account of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to such terminated Special Servicer of all outstanding Servicing Advances made by such terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to such terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that such terminated Special Servicer had actually made them), (ii) such terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that such terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. Such terminated Special Servicer shall cooperate (time being of the essence in connection with a termination under Section 6.05(b)) with the Trustee and the replacement to such terminated Special Servicer in effecting the transfer of such terminated Special Servicer’s responsibilities and rights hereunder to its successor, including the transfer within two (2) Business Days of its termination becoming effective pursuant to this Section 6.05, to the replacement to such terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by such terminated Special Servicer to the REO Account maintained by it or to any Servicing Account or Reserve Account or should have been delivered to the Master Servicer or that are thereafter received by or on behalf of such terminated Special Servicer with respect to any Mortgage Loan or REO Property. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2012-Lc5), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2012-Lc5)

Replacement of Special Servicer. (a) During any Subordinate Control Period, the Majority Subordinate Certificateholder, or the Subordinate Class Representative on its behalf, will have the right to terminate the Special Servicer, with or without cause, and appoint itself or an Affiliate thereof or another Person as the successor Special Servicer. It shall be a condition to such appointment that ~~(i)~~ the successor Special Servicer be a Qualified Replacement Special Servicer ~~(ii) the successor Special Servicer deliver to the Depositor~~ and ~~each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii)~~ the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice to each of the parties to this Agreement that such appointment is void. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator ~~and the Trustee~~ of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders) and the equivalent from each ~~NRSRO~~ Rating Agency hired to provide ratings with respect to any commercial mortgage-backed securities backed by the Serviced Pari Passu Companion ~~Loan Securities~~Loan, the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all ~~Principal Balance~~ Certificates on an aggregate basis, the ~~Trustee~~ Certificate Administrator shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, during any Senior Consultation Period, if the Trust Advisor ~~determines, in its sole discretion exercised in good faith,~~ determines that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional ~~information as it deems appropriate~~information) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all ~~Principal Balance~~ Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the ~~then-~~then current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies ~~(and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable)~~ with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies ~~(and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable)~~ (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). ~~Any such~~ The termination of an the existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed ~~removal and~~ replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s ~~recommendation for replacement of, or~~ determination ~~not to recommend the replacement of, the Special Servicer~~ under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement.[Reserved] (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to this Section 6.05 shall be effective until the Trustee shall have received (A) a Rating Agency Confirmation from each Rating Agency ~~(and, in the case of any Serviced Loan Combination, an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable pursuant to Section 3.27(k))~~ with respect to such removal and/or appointment, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to ~~that~~ the terminated Special Servicer, and (C) an Opinion of Counsel (the expense of which shall be deemed to be part of the expenses of the replacement) substantially to the effect that (1) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (2) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (3) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms. (f) ~~The~~ Any Special Servicer terminated pursuant to this Section 6.05 shall be deemed to have been so terminated simultaneously with the designated successor’s becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection Account of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to such terminated Special Servicer of all outstanding Servicing Advances made by such terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to such terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that such terminated Special Servicer had actually made them), (ii) such terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that such terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. Such terminated Special Servicer shall cooperate (time being of the essence in connection with a termination under Section 6.05(b)) with the Trustee and the replacement to such terminated Special Servicer in effecting the transfer of such terminated Special Servicer’s responsibilities and rights hereunder to its successor, including the transfer within two (2) Business Days of its termination becoming effective pursuant to this Section 6.05, to the replacement to such terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by such terminated Special Servicer to the REO Account maintained by it or to any Servicing Account or Reserve Account or should have been delivered to the Master Servicer or that are thereafter received by or on behalf of such terminated Special Servicer with respect to any Mortgage Loan or REO Property. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C8), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C8)

Replacement of Special Servicer. (a) During any Subordinate Control Period, the Majority Subordinate Certificateholder, or the Subordinate Class Representative on its behalf, will have the right to terminate the Special Servicer, with or without cause, and appoint itself or an Affiliate thereof or another Person as the successor Special Servicer. It shall be a condition to such appointment that ~~(i)~~ the successor Special Servicer be a Qualified Replacement Special Servicer ~~(ii) the successor Special Servicer deliver to the Depositor~~ and ~~each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii)~~ the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice to each of the parties to this Agreement that such appointment is void. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the ~~aggregate~~ Voting Rights (taking into account the allocation of ~~any~~ Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance ~~Certificates to which such Appraisal Reduction Amounts are allocable~~Certificates) ~~of all Certificates on an aggregate basis,~~ requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator ~~and the Trustee~~ of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders~~) and the equivalent from each NRSRO hired to provide ratings with respect to any Serviced Companion Loan Securities~~), the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of ~~any~~ Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance ~~Certificates to which such Appraisal Reduction Amounts are allocable~~Certificates) of all Principal Balance Certificates on an aggregate basis, the ~~Trustee~~ Certificate Administrator shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, during any Senior Consultation Period, if the Trust Advisor ~~determines, in its sole discretion exercised in good faith,~~ determines that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional ~~information as it deems appropriate~~information) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the ~~allocation~~ application of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance ~~Certificates to which such Appraisal Reduction Amounts are allocable~~Certificates) of all Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the ~~then-~~then current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies ~~(and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable)~~ with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies ~~(and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable)~~ (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). ~~Any such~~ The termination of an the existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed ~~removal and~~ replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s ~~recommendation for replacement of, or~~ determination ~~not to recommend the replacement of, the Special Servicer~~ under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement. (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to this Section 6.05 shall be effective until the Trustee shall have received (A) a Rating Agency Confirmation from each Rating Agency (and, in the case of any Serviced Loan Combination, an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable pursuant to Section 3.27(k)) with respect to such removal and/or appointment, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to that terminated Special Servicer, and (C) an Opinion of Counsel (the expense of which shall be deemed to be part of the expenses of the replacement) substantially to the effect that (1) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (2) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (3) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms. (f) The Special Servicer terminated pursuant to this Section 6.05 shall be deemed to have been so terminated simultaneously with the designated successor’s becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection Account of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to such terminated Special Servicer of all outstanding Servicing Advances made by such terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to such terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that such terminated Special Servicer had actually made them), (ii) such terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that such terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. Such terminated Special Servicer shall cooperate (time being of the essence in connection with a termination under Section 6.05(b)) with the Trustee and the replacement to such terminated Special Servicer in effecting the transfer of such terminated Special Servicer’s responsibilities and rights hereunder to its successor, including the transfer within two (2) Business Days of its termination becoming effective pursuant to this Section 6.05, to the replacement to such terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by such terminated Special Servicer to the REO Account maintained by it or to any Servicing Account or Reserve Account or should have been delivered to the Master Servicer or that are thereafter received by or on behalf of such terminated Special Servicer with respect to any Mortgage Loan or REO Property. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C6), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C6)

Replacement of Special Servicer. (a) ~~During any Subordinate Control Period~~Subject to Section 3.25(b), the ~~Majority Subordinate Certificateholder, or the Subordinate~~ Controlling Class Representative ~~on its behalf, will have~~ may remove the ~~right to terminate the~~ existing Special ~~Servicer,~~ Servicer hereunder (with or without cause, ) and appoint ~~itself or an Affiliate thereof or another Person as~~ a successor to the ~~successor~~ existing Special Servicer~~. It~~ ; provided that if any such removal is made without cause, then the costs of transferring the special servicing responsibilities of the removed Special Servicer to a successor thereto shall be ~~a condition to such appointment that~~ paid by the Certificateholders of the Controlling Class and (iB) the ~~successor Special Servicer be a Qualified Replacement Special Servicer (ii) the successor Special Servicer deliver~~ Controlling Class Representative shall have delivered or caused to the Depositor and each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii) the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice have been delivered to each of the parties hereto a copy of the request for the rating confirmation described in clause (i) of subsection (b) that constitutes a condition to the effectiveness of the removal and/or appointment, simultaneously with or promptly following the delivery of such request to the Rating Agencies. Subject to Section 3.25(b) and any and all limitations on such right as may be set forth in the related Mortgage Loan Group Intercreditor Agreement (including the provisions to the effect that the following appointment right only applies at any time when both (a) a PCF Change in Control Event has not occurred and (b) either (i) the Special Servicer does not meet the eligibility requirements under this Agreement (which requirements consist of the absence of an Event of Default) or (ii) the initial Holder of a majority of the Controlling Class of Certificates or an Affiliate thereof ceases to be the Holder of a majority of the Class of Certificates that then constitutes the Controlling Class of Certificates), the applicable Serviced Non-Pooled Subordinate Noteholder for each PCF Mortgage Loan Group shall be entitled to remove the Special Servicer as the special servicer for such ~~appointment~~ Serviced Mortgage Loan Group and appoint a successor to the Special Servicer as the applicable special servicer for such Serviced Mortgage Loan Group provided that if any such removal is ~~void~~made without cause, then the costs of transferring the special servicing responsibilities of the removed Special Servicer to a successor thereto shall be paid by the related Serviced Non-Pooled Subordinate Noteholders and (B) the related Serviced Non-Pooled Subordinate Noteholder shall have delivered or caused to have been delivered to each of the parties hereto a copy of the request for the rating confirmation described in clause (i) of subsection (b) that constitutes a condition to the effectiveness of the removal and/or appointment, simultaneously with or promptly following the delivery of such request to the Rating Agencies. In the event of a replacement described in the immediately preceding sentence, all references to the "Special Servicer" in this Agreement, insofar as those references apply to the related Serviced Mortgage Loan Group or one or more Mortgage Loans therein, shall instead be construed to mean the separately-appointed successor Special Servicer (unless the context indicates otherwise). (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator and the Trustee of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders) and the equivalent from each NRSRO hired to provide ratings with respect to any Serviced Companion Loan Securities, the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis, the Trustee shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, during any Senior Consultation Period, if the Trust Advisor determines, in its sole discretion exercised in good faith, that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional information as it deems appropriate) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the then-current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). Any such termination of an existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed removal and replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s recommendation for replacement of, or determination not to recommend the replacement of, the Special Servicer under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement. (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to ~~this~~ Section ~~6.05~~ 3.25(a) shall be effective ~~until~~ until: (i) the Trustee shall have received (A) ~~a Rating Agency Confirmation~~ written confirmation from each Rating Agency ~~(and,~~ for the Rated Certificates that such removal and/or appointment will not result in ~~the case of any Serviced Loan Combination,~~ an ~~analogous rating agency confirmation from each Companion Loan~~ Adverse Rating ~~Agency, if applicable pursuant to Section 3.27(k))~~ Event with respect to any Class of Rated Certificates rated by such Rating Agency and (for so long as any Serviced Non-Pooled Pari Passu Companion Loan is serviced and administered under this Agreement for which any Non-Pooled Pari Passu Companion Loan Securities are outstanding) from each applicable Rating Agency for the related Non-Pooled Pari Passu Companion Loan Securities, as applicable, that such removal and/or ~~appointment~~appointment will not result in an Adverse Rating Event with respect to any class of such Non-Pooled Pari Passu Companion Loan Securities rated by such applicable Rating Agency, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to ~~that~~ the terminated Special Servicer, and (C) an Opinion of Counsel (~~the~~ which shall not be an expense of ~~which shall be deemed to be part of~~ the ~~expenses of~~ Trustee or the ~~replacement~~Trust) substantially to the effect that (1) the removal of such terminated Special Servicer and/or the appointment of the Person designated to serve as successor thereto is in compliance with this Section 3.25, (2) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (23) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (34) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms; and (ii) if such terminated Special Servicer has been removed without cause, the Certificateholders of the Controlling Class shall have delivered to the Trustee and the terminated Special Servicer such Certificateholders' joint and several undertaking to pay any expenses incurred by the Trustee and such terminated Special Servicer in connection with the transfer of special servicing responsibilities to a successor Special Servicer. (fc) ~~The~~ Any Special Servicer terminated pursuant to ~~this~~ Section ~~6.05~~ 3.25(a) shall be deemed to have been so terminated simultaneously with the designated successor’s 's becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection ~~Account~~ Accounts of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to such terminated Special Servicer of all outstanding Servicing Advances made by such terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to such terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that such terminated Special Servicer had actually made them), (ii) such terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that such terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. Such terminated Special Servicer shall cooperate ~~(time being of the essence in connection with a termination under Section 6.05(b))~~ with the Trustee and the replacement to such terminated Special Servicer in effecting the transfer of such terminated Special Servicer’s 's responsibilities and rights hereunder to its successor, including the transfer within two ~~(2)~~ Business Days of its termination becoming effective pursuant to this Section ~~6.05~~3.25, to the replacement to such terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by such terminated Special Servicer to the REO Account maintained by it or to any Servicing Account or Reserve Account or should have been delivered to the Master ~~Servicer~~ Servicers or that are thereafter received by or on behalf of such terminated Special Servicer with respect to any Mortgage Loan or REO Property~~. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05~~.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr9)

Replacement of Special Servicer. (a) ~~During any Subordinate Control Period~~Subject to Section 3.25(b), the ~~Majority Subordinate Certificateholder, or the Subordinate~~ Controlling Class Representative ~~on its behalf, will have~~ may remove the ~~right to terminate the~~ existing Special ~~Servicer,~~ Servicer hereunder (with or without cause, ) and appoint ~~itself or an Affiliate thereof or another Person as~~ a successor to the ~~successor~~ existing Special Servicer~~. It~~ ; provided that if any such removal is made without cause, then the costs of transferring the special servicing responsibilities of the removed Special Servicer to a successor thereto shall be ~~a condition to such appointment that~~ paid by the Certificateholders of the Controlling Class and (iB) the ~~successor Special Servicer be a Qualified Replacement Special Servicer (ii) the successor Special Servicer deliver~~ Controlling Class Representative shall have delivered or caused to the Depositor and each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii) the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice have been delivered to each of the parties hereto a copy of the request for the rating confirmation described in clause (i) of subsection (b) that constitutes a condition to ~~this Agreement that~~ the effectiveness of the removal and/or appointment, simultaneously with or promptly following the delivery of such ~~appointment is void~~request to the Rating Agencies. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator and the Trustee of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders) and the equivalent from each NRSRO hired to provide ratings with respect to any Serviced Companion Loan Securities, the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis, the Trustee shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, during any Senior Consultation Period, if the Trust Advisor determines, in its sole discretion exercised in good faith, that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional information as it deems appropriate) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the then-current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). Any such termination of an existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed removal and replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s recommendation for replacement of, or determination not to recommend the replacement of, the Special Servicer under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement. (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to ~~this~~ Section ~~6.05~~ 3.25(a) shall be effective ~~until~~ until: (i) the Trustee shall have received (A) ~~a Rating Agency Confirmation~~ written confirmation from each Rating Agency ~~(and,~~ for the Rated Certificates that such removal and/or appointment will not result in ~~the case of any Serviced Loan Combination,~~ an ~~analogous rating agency confirmation from each Companion Loan~~ Adverse Rating ~~Agency, if applicable pursuant to Section 3.27(k))~~ Event with respect to any Class of Rated Certificates rated by such Rating Agency and (for so long as any Serviced Non-Pooled Pari Passu Companion Loan is serviced and administered under this Agreement for which any Non-Pooled Pari Passu Companion Loan Securities are outstanding) from each applicable Rating Agency for the related Non-Pooled Pari Passu Companion Loan Securities, as applicable, that such removal and/or ~~appointment~~appointment will not result in an Adverse Rating Event with respect to any class of such Non-Pooled Pari Passu Companion Loan Securities rated by such applicable Rating Agency, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to ~~that~~ the terminated Special Servicer, and (C) an Opinion of Counsel (~~the~~ which shall not be an expense of ~~which shall be deemed to be part of~~ the ~~expenses of~~ Trustee or the ~~replacement~~Trust) substantially to the effect that (1) the removal of such terminated Special Servicer and/or the appointment of the Person designated to serve as successor thereto is in compliance with this Section 3.25, (2) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (23) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (34) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms; and (ii) if such terminated Special Servicer has been removed without cause, the Certificateholders of the Controlling Class shall have delivered to the Trustee and the terminated Special Servicer such Certificateholders' joint and several undertaking to pay any expenses incurred by the Trustee and such terminated Special Servicer in connection with the transfer of special servicing responsibilities to a successor Special Servicer. (fc) ~~The~~ Any Special Servicer terminated pursuant to ~~this~~ Section ~~6.05~~ 3.25(a) shall be deemed to have been so terminated simultaneously with the designated successor’s 's becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection ~~Account~~ Accounts of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to such terminated Special Servicer of all outstanding Servicing Advances made by such terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to such terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that such terminated Special Servicer had actually made them), (ii) such terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that such terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. Such terminated Special Servicer shall cooperate ~~(time being of the essence in connection with a termination under Section 6.05(b))~~ with the Trustee and the replacement to such terminated Special Servicer in effecting the transfer of such terminated Special Servicer’s 's responsibilities and rights hereunder to its successor, including the transfer within two ~~(2)~~ Business Days of its termination becoming effective pursuant to this Section ~~6.05~~3.25, to the replacement to such terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by such terminated Special Servicer to the REO Account maintained by it or to any Servicing Account or Reserve Account or should have been delivered to the Master ~~Servicer~~ Servicers or that are thereafter received by or on behalf of such terminated Special Servicer with respect to any Mortgage Loan or REO Property~~. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05~~.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2006-Pwr11)

Replacement of Special Servicer. (a) During any Subordinate Control Period, the Majority Subordinate Certificateholder, or the Subordinate Class Representative on its behalf, will have the right to terminate the Special Servicer, with or without cause, and appoint itself or an Affiliate thereof or another Person as the successor Special Servicer. It shall be a condition to such appointment that ~~(i)~~ the successor Special Servicer be a Qualified Replacement Special Servicer ~~(ii) the successor Special Servicer deliver to the Depositor~~ and ~~each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii)~~ the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice to each of the parties to this Agreement that such appointment is void. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator ~~and the Trustee~~ of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders) and the equivalent from each ~~NRSRO hired to provide ratings with respect to any Serviced~~ Pari Passu Companion ~~Loan Securities~~Rating Agency, the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis, the ~~Trustee~~ Certificate Administrator shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, during any Senior Consultation Period, if the Trust Advisor determines, in its sole discretion exercised in good faith, that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional information as it deems appropriate) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the then-current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Pari Passu Companion ~~Loan~~ Rating Agency, if applicable) with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Pari Passu Companion ~~Loan~~ Rating Agency, if applicable) (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). Any such termination of an existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed removal and replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s ~~recommendation for replacement of, or~~ determination ~~not to recommend the replacement of, the Special Servicer~~ under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Pari Passu Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Pari Passu Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Pari Passu Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement6.05. (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to this Section 6.05 shall be effective until the Trustee shall have received (A) a Rating Agency Confirmation from each Rating Agency (and, in the case of any Serviced Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion ~~Loan~~ Rating Agency, if applicable pursuant to Section 3.27(k)) with respect to such removal and/or appointment, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to that terminated Special Servicer, and (C) an Opinion of Counsel (the expense of which shall be deemed to be part of the expenses of the replacement) substantially to the effect that (1) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (2) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (3) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms. (f) The Special Servicer terminated pursuant to this Section 6.05 shall be deemed to have been so terminated simultaneously with the designated successor’s becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection Account of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to such terminated Special Servicer of all outstanding Servicing Advances made by such terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to such terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that such terminated Special Servicer had actually made them), (ii) such terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that such terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. Such terminated Special Servicer shall cooperate (time being of the essence in connection with a termination under Section 6.05(b)) with the Trustee and the replacement to such terminated Special Servicer in effecting the transfer of such terminated Special Servicer’s responsibilities and rights hereunder to its successor, including the transfer within two (2) Business Days of its termination becoming effective pursuant to this Section 6.05, to the replacement to such terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by such terminated Special Servicer to the REO Account maintained by it or to any Servicing Account or Reserve Account or should have been delivered to the Master Servicer or that are thereafter received by or on behalf of such terminated Special Servicer with respect to any Mortgage Loan or REO Property. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2014-Lc16)

Replacement of Special Servicer. (a) ~~During any Subordinate Control Period~~Subject to Section 3.25(b), the ~~Majority Subordinate Certificateholder, or the Subordinate~~ Controlling Class Representative ~~on its behalf, will have~~ may remove the ~~right to terminate the~~ existing Special ~~Servicer,~~ Servicer hereunder (with or without cause, ) and appoint ~~itself or an Affiliate thereof or another Person as~~ a successor to the ~~successor~~ existing Special Servicer~~. It~~ ; provided that if any such removal is made without cause, then the costs of transferring the special servicing responsibilities of the removed Special Servicer to a successor thereto shall be ~~a condition to such appointment that~~ paid by the Certificateholders of the Controlling Class and (iB) the ~~successor Special Servicer be a Qualified Replacement Special Servicer (ii) the successor Special Servicer deliver~~ Controlling Class Representative shall have delivered or caused to the Depositor and each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii) the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice have been delivered to each of the parties hereto a copy of the request for the rating confirmation described in clause (i) of subsection (b) that constitutes a condition to ~~this Agreement that~~ the effectiveness of the removal and/or appointment, simultaneously with or promptly following the delivery of such ~~appointment is void~~request to the Rating Agencies. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator and the Trustee of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders) and the equivalent from each NRSRO hired to provide ratings with respect to any Serviced Companion Loan Securities, the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis, the Trustee shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, during any Senior Consultation Period, if the Trust Advisor determines, in its sole discretion exercised in good faith, that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional information as it deems appropriate) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the then-current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). Any such termination of an existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed removal and replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s recommendation for replacement of, or determination not to recommend the replacement of, the Special Servicer under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement. (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to ~~this~~ Section ~~6.05~~ 3.25(a) shall be effective ~~until~~ until: (i) the Trustee shall have received (A) ~~a Rating Agency Confirmation from each Rating Agency (and, in the case of any Serviced Loan Combination, an analogous rating agency~~ written confirmation from each ~~Companion Loan~~ of the Rating ~~Agency, if applicable pursuant to Section 3.27(k))~~ Agencies that such removal and/or appointment will not result in an Adverse Rating Event with respect to ~~such removal and/or appointment~~any Class of Rated Certificates, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to ~~that~~ the terminated Special Servicer, and (C) an Opinion of Counsel (~~the~~ which shall not be an expense of ~~which shall be deemed to be part of~~ the ~~expenses of~~ Trustee or the ~~replacement~~Trust) substantially to the effect that (1) the removal of the terminated Special Servicer and/or the appointment of the Person designated to serve as successor thereto is in compliance with this Section 3.25, (2) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (23) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (34) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms; and (ii) if the terminated Special Servicer has been removed by without cause, the Certificateholders of the Controlling Class shall have delivered to the Trustee and the terminated Special Servicer such Certificateholders' joint and several undertaking to pay any expenses incurred by the Trustee and such terminated Special Servicer in connection with the transfer of special servicing responsibilities to a successor Special Servicer. (fc) ~~The~~ Any Special Servicer terminated pursuant to ~~this~~ Section ~~6.05~~ 3.25(a) shall be deemed to have been so terminated simultaneously with the designated successor’s 's becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection ~~Account~~ Accounts of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor ~~to such terminated~~ Special Servicer of all outstanding Servicing Advances made by ~~such~~ the terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor ~~to such terminated~~ Special Servicer shall be deemed to have made such Servicing Advances at the same time that ~~such~~ the terminated Special Servicer had actually made them), (ii) ~~such~~ the terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) ~~such~~ the terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that ~~such~~ the terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. ~~Such~~ The terminated Special Servicer shall cooperate ~~(time being of the essence in connection with a termination under Section 6.05(b))~~ with the Trustee and the replacement ~~to such terminated~~ Special Servicer in effecting the transfer of ~~such~~ the terminated Special Servicer’s 's responsibilities and rights hereunder to its successor, including the transfer within two ~~(2)~~ Business Days of its termination becoming effective pursuant to ~~this~~ Section ~~6.05~~3.25, to the replacement ~~to such terminated~~ Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by ~~such~~ the terminated Special Servicer to the REO Account ~~maintained by it~~ or to any Servicing Account or Reserve Account or should have been delivered to the Master ~~Servicer~~ Servicers or that are thereafter received by or on behalf of ~~such~~ the terminated Special Servicer with respect to any Mortgage Loan or REO Property~~. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05~~.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Prudential Securities Sec Fin Corp Com Mort Tr 2003 Pwr1)

Replacement of Special Servicer. (a) ~~During any Subordinate Control Period~~Subject to Section 3.27(b), the ~~Majority Subordinate Certificateholder, or the Subordinate~~ Controlling Class Representative ~~on its behalf, will have~~ may remove the ~~right to terminate the~~ existing Special ~~Servicer,~~ Servicer hereunder (with or without cause, ) and appoint ~~itself or an Affiliate thereof or another Person as~~ a successor to the ~~successor~~ existing Special Servicer~~. It~~ ; provided that if any such removal is made without cause, then the costs of transferring the special servicing responsibilities of the removed Special Servicer to a successor thereto shall be ~~a condition to such appointment that~~ paid by the Certificateholders of the Controlling Class and (iB) the ~~successor Special Servicer be a Qualified Replacement Special Servicer (ii) the successor Special Servicer deliver~~ Controlling Class Representative shall have delivered or caused to the Depositor and each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii) the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice have been delivered to each of the parties hereto a copy of the request for the rating confirmation described in clause (i) of subsection (b) that constitutes a condition to ~~this Agreement that~~ the effectiveness of the removal and/or appointment, simultaneously with or promptly following the delivery of such ~~appointment is void~~request to the Rating Agencies. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator and the Trustee of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders) and the equivalent from each NRSRO hired to provide ratings with respect to any Serviced Companion Loan Securities, the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis, the Trustee shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, during any Senior Consultation Period, if the Trust Advisor determines, in its sole discretion exercised in good faith, that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional information as it deems appropriate) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the then-current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). Any such termination of an existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed removal and replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s recommendation for replacement of, or determination not to recommend the replacement of, the Special Servicer under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement. (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to ~~this~~ Section ~~6.05~~ 3.27(a) shall be effective ~~until~~ until: (i) the Trustee shall have received (A) ~~a Rating Agency Confirmation~~ written confirmation from each Rating Agency ~~(and,~~ for the Rated Certificates that such removal and/or appointment will not result in ~~the case of any Serviced Loan Combination,~~ an ~~analogous rating agency confirmation from each Companion Loan~~ Adverse Rating ~~Agency, if applicable pursuant to Section 3.27(k))~~ Event with respect to any Class of Rated Certificates rated by such Rating Agency and (for so long as the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan is serviced and administered under this Agreement) from each applicable Rating Agency for the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan Securities that such removal and/or ~~appointment~~appointment will not result in an Adverse Rating Event with respect to any class of 11 Penn Plaza Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to ~~that~~ the terminated Special Servicer, and (C) an Opinion of Counsel (~~the~~ which shall not be an expense of ~~which shall be deemed to be part of~~ the ~~expenses of~~ Trustee or the ~~replacement~~Trust) substantially to the effect that (1) the removal of the terminated Special Servicer and/or the appointment of the Person designated to serve as successor thereto is in compliance with this Section 3.27, (2) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (23) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (34) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms; and (ii) if the terminated Special Servicer has been removed without cause, the Certificateholders of the Controlling Class shall have delivered to the Trustee and the terminated Special Servicer such Certificateholders' joint and several undertaking to pay any expenses incurred by the Trustee and the terminated Special Servicer in connection with the transfer of special servicing responsibilities to a successor Special Servicer. (fc) ~~The~~ Any Special Servicer terminated pursuant to ~~this~~ Section ~~6.05~~ 3.27(a) shall be deemed to have been so terminated simultaneously with the designated successor’s 's becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection ~~Account~~ Accounts of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to ~~such~~ the terminated Special Servicer of all outstanding Servicing Advances made by ~~such~~ the terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to ~~such~~ the terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that ~~such~~ the terminated Special Servicer had actually made them), (ii) ~~such~~ the terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) ~~such~~ the terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that ~~such~~ the terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. ~~Such~~ The terminated Special Servicer shall cooperate ~~(time being of the essence in connection with a termination under Section 6.05(b))~~ with the Trustee and the replacement to ~~such~~ the terminated Special Servicer in effecting the transfer of ~~such~~ the terminated Special Servicer’s 's responsibilities and rights hereunder to its successor, including the transfer within two ~~(2)~~ Business Days of its termination becoming effective pursuant to this Section ~~6.05~~3.27, to the replacement to ~~such~~ the terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by ~~such~~ the terminated Special Servicer to the REO Account maintained by it or to any Servicing Account or Reserve Account or should have been delivered to the Master ~~Servicer~~ Servicers or that are thereafter received by or on behalf of ~~such~~ the terminated Special Servicer with respect to any Mortgage Loan or REO Property~~. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05~~.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr6)

Replacement of Special Servicer. (a) During any Subordinate Control Period, the Majority Subordinate Certificateholder, or the Subordinate Class Representative on its behalf, will have the right to terminate the Special Servicer, with or without cause, and appoint itself or an Affiliate thereof or another Person as the successor Special Servicer. It shall be a condition to such appointment that ~~(i)~~ the successor Special Servicer be a Qualified Replacement Special Servicer ~~(ii) the successor Special Servicer deliver to the Depositor~~ and ~~each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii)~~ the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice to each of the parties to this Agreement that such appointment is void. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator ~~and the Trustee~~ of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders) and the equivalent from each ~~NRSRO hired to provide ratings with respect to any Serviced~~ Pari Passu Companion ~~Loan Securities~~Rating Agency, the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis, the ~~Trustee~~ Certificate Administrator shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, during any Senior Consultation Period, if the Trust Advisor determines, in its sole discretion exercised in good faith, that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional information as it deems appropriate) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the then-current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Pari Passu Companion ~~Loan~~ Rating Agency, if applicable) with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Pari Passu Companion ~~Loan~~ Rating Agency, if applicable) (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). Any such termination of an existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed removal and replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s ~~recommendation for replacement of, or~~ determination ~~not to recommend the replacement of, the Special Servicer~~ under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Pari Passu Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Pari Passu Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement. (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to this Section 6.05 shall be effective until the Trustee shall have received (A) a Rating Agency Confirmation from each Rating Agency (and, in the case of any Serviced Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion ~~Loan~~ Rating Agency, if applicable pursuant to Section 3.27(k)) with respect to such removal and/or appointment, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to that terminated Special Servicer, and (C) an Opinion of Counsel (the expense of which shall be deemed to be part of the expenses of the replacement) substantially to the effect that (1) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (2) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (3) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms. (f) The Special Servicer terminated pursuant to this Section 6.05 shall be deemed to have been so terminated simultaneously with the designated successor’s becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection Account of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to such terminated Special Servicer of all outstanding Servicing Advances made by such terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to such terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that such terminated Special Servicer had actually made them), (ii) such terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that such terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. Such terminated Special Servicer shall cooperate (time being of the essence in connection with a termination under Section 6.05(b)) with the Trustee and the replacement to such terminated Special Servicer in effecting the transfer of such terminated Special Servicer’s responsibilities and rights hereunder to its successor, including the transfer within two (2) Business Days of its termination becoming effective pursuant to this Section 6.05, to the replacement to such terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by such terminated Special Servicer to the REO Account maintained by it or to any Servicing Account or Reserve Account or should have been delivered to the Master Servicer or that are thereafter received by or on behalf of such terminated Special Servicer with respect to any Mortgage Loan or REO Property. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2014-Lc16)

Replacement of Special Servicer. (a) ~~During any Subordinate Control Period~~Subject to Section 3.27(b), the ~~Majority Subordinate Certificateholder, or the Subordinate~~ Controlling Class Representative ~~on its behalf, will have~~ may remove the ~~right to terminate the~~ existing Special ~~Servicer,~~ Servicer hereunder (with or without cause, ) and appoint ~~itself or an Affiliate thereof or another Person as~~ a successor to the ~~successor~~ existing Special Servicer~~. It~~ ; provided that if any such removal is made without cause, then the costs of transferring the special servicing responsibilities of the removed Special Servicer to a successor thereto shall be ~~a condition to such appointment that~~ paid by the Certificateholders of the Controlling Class and (iB) the ~~successor Special Servicer be a Qualified Replacement Special Servicer (ii) the successor Special Servicer deliver~~ Controlling Class Representative shall have delivered or caused to the Depositor and each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii) the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice have been delivered to each of the parties hereto a copy of the request for the rating confirmation described in clause (i) of subsection (b) that constitutes a condition to ~~this Agreement that~~ the effectiveness of the removal and/or appointment, simultaneously with or promptly following the delivery of such ~~appointment is void~~request to the Rating Agencies. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator and the Trustee of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders) and the equivalent from each NRSRO hired to provide ratings with respect to any Serviced Companion Loan Securities, the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis, the Trustee shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, during any Senior Consultation Period, if the Trust Advisor determines, in its sole discretion exercised in good faith, that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional information as it deems appropriate) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the then-current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). Any such termination of an existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed removal and replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s recommendation for replacement of, or determination not to recommend the replacement of, the Special Servicer under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement. (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to ~~this~~ Section ~~6.05~~ 3.27(a) shall be effective ~~until~~ until: (i) the Trustee shall have received (A) ~~a Rating Agency Confirmation from each Rating Agency (and, in the case of any Serviced Loan Combination, an analogous rating agency~~ written confirmation from each ~~Companion Loan~~ of the Rating ~~Agency, if applicable pursuant to Section 3.27(k))~~ Agencies that such removal and/or appointment will not result in an Adverse Rating Event with respect to ~~such removal and/or appointment~~any Class of Rated Certificates, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to ~~that~~ the terminated Special Servicer, and (C) an Opinion of Counsel (~~the~~ which shall not be an expense of ~~which shall be deemed to be part of~~ the ~~expenses of~~ Trustee or the ~~replacement~~Trust) substantially to the effect that (1) the removal of the terminated Special Servicer and/or the appointment of the Person designated to serve as successor thereto is in compliance with this Section 3.27, (2) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (23) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (34) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms; and (ii) if the terminated Special Servicer has been removed by without cause, the Certificateholders of the Controlling Class shall have delivered to the Trustee and the terminated Special Servicer such Certificateholders' joint and several undertaking to pay any expenses incurred by the Trustee and the terminated Special Servicer in connection with the transfer of special servicing responsibilities to a successor Special Servicer. (fc) ~~The~~ Any Special Servicer terminated pursuant to ~~this~~ Section ~~6.05~~ 3.27(a) shall be deemed to have been so terminated simultaneously with the designated successor’s 's becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection ~~Account~~ Accounts of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to ~~such~~ the terminated Special Servicer of all outstanding Servicing Advances made by ~~such~~ the terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to ~~such~~ the terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that ~~such~~ the terminated Special Servicer had actually made them), (ii) ~~such~~ the terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) ~~such~~ the terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that ~~such~~ the terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. ~~Such~~ The terminated Special Servicer shall cooperate ~~(time being of the essence in connection with a termination under Section 6.05(b))~~ with the Trustee and the replacement to ~~such~~ the terminated Special Servicer in effecting the transfer of ~~such~~ the terminated Special Servicer’s 's responsibilities and rights hereunder to its successor, including the transfer within two ~~(2)~~ Business Days of its termination becoming effective pursuant to this Section ~~6.05~~3.27, to the replacement to ~~such~~ the terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by ~~such~~ the terminated Special Servicer to the REO Account maintained by it or to any Servicing Account or Reserve Account or should have been delivered to the Master ~~Servicer~~ Servicers or that are thereafter received by or on behalf of ~~such~~ the terminated Special Servicer with respect to any Mortgage Loan or REO Property~~. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05~~.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr5)

Replacement of Special Servicer. (a) ~~During any Subordinate Control Period~~Subject to Section 3.25(b), the ~~Majority Subordinate Certificateholder, or the Subordinate~~ Controlling Class Representative ~~on its behalf, will have~~ may remove the ~~right to terminate the~~ existing Special ~~Servicer,~~ Servicer hereunder (with or without cause, ) and appoint ~~itself or an Affiliate thereof or another Person as~~ a successor to the ~~successor~~ existing Special Servicer~~. It~~ ; provided that if any such removal is made without cause, then the costs of transferring the special servicing responsibilities of the removed Special Servicer to a successor thereto shall be ~~a condition to such appointment that~~ paid by the Certificateholders of the Controlling Class and (iB) the ~~successor Special Servicer be a Qualified Replacement Special Servicer (ii) the successor Special Servicer deliver~~ Controlling Class Representative shall have delivered or caused to the Depositor and each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii) the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice have been delivered to each of the parties hereto a copy of the request for the rating confirmation described in clause (i) of subsection (b) that constitutes a condition to the effectiveness of the removal and/or appointment, simultaneously with or promptly following the delivery of such request to the Rating Agencies. Subject to Section 3.25(b) and any and all limitations on such right as may be set forth in the related Mortgage Loan Group Intercreditor Agreement (including the provision to the effect that the following appointment right only applies at a time when a Muirwood Apartments Change of Control Event has not occurred), the applicable Serviced Non-Pooled Subordinate Noteholders for the Muirwood Apartments Loan Group shall be entitled to remove the Special Servicer as the special servicer for such Serviced Mortgage Loan Group and appoint a successor to the Special Servicer as the applicable special servicer for such Serviced Mortgage Loan Group; provided that if any such removal is made without cause, then the costs of transferring the special servicing responsibilities of the removed Special Servicer to a successor thereto shall be paid by the related Serviced Non-Pooled Subordinate Noteholders and (B) the related Serviced Non-Pooled Subordinate Noteholders shall have delivered or caused to have been delivered to each of the parties hereto a copy of the request for the rating confirmation described in clause (i) of subsection (b) that constitutes a condition to the effectiveness of the removal and/or appointment, simultaneously with or promptly following the delivery of such request to the Rating Agencies. In the event of a replacement described in the immediately preceding sentence, all references to the "Special Servicer" in this ~~Agreement that such appointment is void~~Agreement, insofar as those references apply to the related Serviced Mortgage Loan Group or one or more Mortgage Loans therein, shall instead be construed to mean the separately-appointed successor Special Servicer (unless the context indicates otherwise). (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator and the Trustee of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders) and the equivalent from each NRSRO hired to provide ratings with respect to any Serviced Companion Loan Securities, the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis, the Trustee shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, during any Senior Consultation Period, if the Trust Advisor determines, in its sole discretion exercised in good faith, that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional information as it deems appropriate) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the then-current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). Any such termination of an existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed removal and replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s recommendation for replacement of, or determination not to recommend the replacement of, the Special Servicer under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement. (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to ~~this~~ Section ~~6.05~~ 3.25(a) shall be effective ~~until~~ until: (i) the Trustee shall have received (A) ~~a Rating Agency Confirmation~~ written confirmation from each Rating Agency ~~(and,~~ for the Rated Certificates that such removal and/or appointment will not result in ~~the case of any Serviced Loan Combination,~~ an ~~analogous rating agency confirmation from each Companion Loan~~ Adverse Rating ~~Agency, if applicable pursuant to Section 3.27(k))~~ Event with respect to any Class of Rated Certificates rated by such Rating Agency and (for so long as any Serviced Non-Pooled Pari Passu Companion Loan is serviced and administered under this Agreement for which any Non-Pooled Pari Passu Companion Loan Securities are outstanding) from each applicable Rating Agency for the related Non-Pooled Pari Passu Companion Loan Securities, as applicable, that such removal and/or ~~appointment~~appointment will not result in an Adverse Rating Event with respect to any class of such Non-Pooled Pari Passu Companion Loan Securities rated by such applicable Rating Agency, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to ~~that~~ the terminated Special Servicer, and (C) an Opinion of Counsel (~~the~~ which shall not be an expense of ~~which shall be deemed to be part of~~ the ~~expenses of~~ Trustee or the ~~replacement~~Trust) substantially to the effect that (1) the removal of such terminated Special Servicer and/or the appointment of the Person designated to serve as successor thereto is in compliance with this Section 3.25, (2) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (23) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (34) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms; and (ii) if such terminated Special Servicer has been removed without cause, the Certificateholders of the Controlling Class shall have delivered to the Trustee and the terminated Special Servicer such Certificateholders' joint and several undertaking to pay any expenses incurred by the Trustee and such terminated Special Servicer in connection with the transfer of special servicing responsibilities to a successor Special Servicer. (fc) ~~The~~ Any Special Servicer terminated pursuant to ~~this~~ Section ~~6.05~~ 3.25(a) shall be deemed to have been so terminated simultaneously with the designated successor’s 's becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection ~~Account~~ Accounts of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to such terminated Special Servicer of all outstanding Servicing Advances made by such terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to such terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that such terminated Special Servicer had actually made them), (ii) such terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that such terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. Such terminated Special Servicer shall cooperate ~~(time being of the essence in connection with a termination under Section 6.05(b))~~ with the Trustee and the replacement to such terminated Special Servicer in effecting the transfer of such terminated Special Servicer’s 's responsibilities and rights hereunder to its successor, including the transfer within two ~~(2)~~ Business Days of its termination becoming effective pursuant to this Section ~~6.05~~3.25, to the replacement to such terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by such terminated Special Servicer to the REO Account maintained by it or to any Servicing Account or Reserve Account or should have been delivered to the Master ~~Servicer~~ Servicers or that are thereafter received by or on behalf of such terminated Special Servicer with respect to any Mortgage Loan or REO Property~~. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05~~.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr10)

Replacement of Special Servicer. (a) During any Subordinate Control Period, the Majority Subordinate Certificateholder, or the Subordinate Class Representative on its behalf, will have the right to terminate the Special Servicer, with or without cause, and appoint itself or an Affiliate thereof or another Person as the successor Special Servicer. It shall be a condition to such appointment that ~~(i)~~ the successor Special Servicer be a Qualified Replacement Special Servicer ~~(ii) the successor Special Servicer deliver to the Depositor~~ and ~~each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii)~~ the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice to each of the parties to this Agreement that such appointment is void. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator ~~and the Trustee~~ of a Rating Agency Confirmation (and, if applicable, a Pari Passu Companion Rating Agency Confirmation) with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders~~) and the equivalent from each NRSRO hired to provide ratings with respect to any Serviced Companion Loan Securities~~), the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis, the ~~Trustee~~ Certificate Administrator shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, during any Senior Consultation Period, if the Trust Advisor determines, in its sole discretion exercised in good faith, that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional information as it deems appropriate) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the then-current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies (and, ~~subject to Section 3.27(k)~~if applicable, ~~an analogous rating agency confirmation~~ a Pari Passu Companion Rating Agency Confirmation from each Pari Passu Companion ~~Loan~~ Rating Agency~~, if applicable~~) with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation or Pari Passu Companion Rating Agency Confirmation, as applicable. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies (and~~, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency~~, if applicable) , a Pari Passu Companion Rating Agency Confirmation from each Pari Passu Companion Rating Agency (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). Any such termination of an existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed removal and replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s ~~recommendation for replacement of, or~~ determination ~~not to recommend the replacement of, the Special Servicer~~ under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement.[Reserved] (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to this Section 6.05 shall be effective until the Trustee shall have received (A) a Rating Agency Confirmation from each Rating Agency (and, ~~in the case of any Serviced Loan Combination~~if applicable, ~~an analogous rating agency confirmation~~ a Pari Passu Companion Rating Agency Confirmation from each Pari Passu Companion ~~Loan~~ Rating Agency~~, if applicable pursuant to Section 3.27(k)~~) with respect to such removal and/or appointment, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to that terminated Special Servicer, and (C) an Opinion of Counsel (the expense of which shall be deemed to be part of the expenses of the replacement) substantially to the effect that (1) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (2) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (3) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms. (f) ~~The~~ Any Special Servicer terminated pursuant to this Section 6.05 shall be deemed to have been so terminated simultaneously with the designated successor’s becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection Account of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to such terminated Special Servicer of all outstanding Servicing Advances made by such terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to such terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that such terminated Special Servicer had actually made them), (ii) such terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that such terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. Such terminated Special Servicer shall cooperate (time being of the essence in connection with a termination under Section 6.05(b)) with the Trustee and the replacement to such terminated Special Servicer in effecting the transfer of such terminated Special Servicer’s responsibilities and rights hereunder to its successor, including the transfer within two (2) Business Days of its termination becoming effective pursuant to this Section 6.05, to the replacement to such terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by such terminated Special Servicer to the REO Account maintained by it or to any Servicing Account or Reserve Account or should have been delivered to the Master Servicer or that are thereafter received by or on behalf of such terminated Special Servicer with respect to any Mortgage Loan or REO Property. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2013-C17)

Replacement of Special Servicer. (a) ~~During any Subordinate Control Period~~Subject to Section 3.25(b), the ~~Majority Subordinate Certificateholder, or the Subordinate~~ Controlling Class Representative ~~on its behalf~~may, ~~will have~~ upon not less than ten days' prior written notice to the ~~right to terminate the~~ respective parties hereto, remove any existing Special ~~Servicer,~~ Servicer hereunder (with or without cause~~, and appoint itself or an Affiliate thereof or another Person as the successor Special Servicer. It shall be a condition to such appointment that (i~~) the successor Special Servicer be a Qualified Replacement Special Servicer (ii) the successor Special Servicer deliver to the Depositor and each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii) the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice to each of the parties to this Agreement that such appointment is void. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer; provided that, ~~(ii) payment by~~ if any such ~~Holders~~ removal is made without cause, then the costs of transferring the special servicing responsibilities to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator and the Trustee of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders) and the equivalent from each NRSRO hired to provide ratings with respect to any Serviced Companion Loan Securities, the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis, the Trustee shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer ~~that was proposed~~ will be paid by the Certificateholders ~~requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction~~ of the ~~conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied~~Controlling Class. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, ~~during any Senior Consultation Period,~~ if ~~the Trust Advisor determines, in its sole discretion exercised in good faith, that~~ the Special Servicer is ~~not performing its duties under this Agreement in accordance with the Servicing Standard~~terminated pursuant to Section 7.01, ~~the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event~~then, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional information as it deems appropriate) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the then-current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies (and, also subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) (and the successor Special Servicer agrees to be bound by the terms of this Agreement3.25(b), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). Any such termination of an existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed removal and replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s recommendation for replacement of, or determination not to recommend the replacement of, the Special Servicer under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Companion Loan Holder is the “Lead Lender”, “Controlling ~~Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder~~ Class Representative shall be entitled to replace the terminated Special Servicer ~~with respect to~~ for 45 days following such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreementtermination. (eb) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to ~~this~~ Section ~~6.05~~ 3.25(a) shall be effective ~~until~~ until: (i) the Trustee shall have received (A) ~~a Rating Agency Confirmation from each Rating Agency (and, in the case of any Serviced Loan Combination, an analogous rating agency~~ written confirmation from each ~~Companion Loan~~ of the Rating ~~Agency, if applicable pursuant to Section 3.27(k))~~ Agencies that such removal and/or appointment will not result in an Adverse Rating Event with respect to ~~such removal and/or appointment~~any Class of Rated Certificates, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor ~~to that terminated~~ Special Servicer, and (C) an Opinion of Counsel (~~the~~ which shall not be an expense of ~~which shall be deemed to be part of~~ the ~~expenses of~~ Trustee or the ~~replacement~~Trust) substantially to the effect that (1) the removal of the existing Special Servicer and/or the appointment of the Person designated to serve as successor Special Servicer is in compliance with this Section 3.25, (2) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (23) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (34) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms; and (ii) if the existing Special Servicer has been removed by the Controlling Class Representative without cause, the Certificateholders of the Controlling Class have delivered to the Trustee and the terminated Special Servicer such Certificateholders joint and several undertaking to pay any expenses incurred by the Trustee and such terminated Special Servicer in connection with the transfer of special servicing responsibilities to a successor Special Servicer. (fc) ~~The~~ Any Special Servicer terminated pursuant to ~~this~~ Section ~~6.05~~ 3.25(a) shall be deemed to have been so terminated simultaneously with the designated successor’s 's becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection Account of all of its accrued and unpaid Special Servicing ~~Fees, as and to the extent provided in Section 3.05(a),~~ Fees and reimbursement from the successor ~~to such terminated~~ Special Servicer of all outstanding Servicing Advances made by ~~such~~ the terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor ~~to such terminated~~ Special Servicer shall be deemed to have made such Servicing Advances at the same time that ~~such~~ the terminated Special Servicer had actually made them), (ii) ~~such~~ the terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that ~~such~~ the terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. Such terminated Special Servicer shall cooperate ~~(time being of the essence in connection with a termination under Section 6.05(b))~~ with the Trustee and the replacement ~~to such terminated~~ Special Servicer in effecting the transfer of ~~such~~ the terminated Special Servicer’s 's responsibilities and rights hereunder to its successor, including the transfer within two ~~(2)~~ Business Days of its termination becoming effective pursuant to ~~this~~ Section ~~6.05~~3.25, to the replacement ~~to such terminated~~ Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by ~~such~~ the terminated Special Servicer to the REO Account ~~maintained by it~~ or to any Servicing Account or Reserve Account or should have been delivered to the Master Servicer or that are thereafter received by or on behalf of ~~such~~ the terminated Special Servicer with respect to any Mortgage Loan or REO Property~~. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05~~.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Credit Suisse Fr Bs Mor Sec Cp Com Mor Ps Th Ce Ser 2001-Ck1)

Replacement of Special Servicer. (a) ~~During any Subordinate Control Period~~Subject to Section 3.28(b), the ~~Majority Subordinate Certificateholder, or the Subordinate~~ Controlling Class Representative ~~on its behalf, will have~~ may remove the ~~right to terminate the~~ existing Special ~~Servicer,~~ Servicer hereunder (with or without cause, ) and appoint ~~itself or an Affiliate thereof or another Person as~~ a successor to the ~~successor~~ existing Special Servicer~~. It~~ ; provided that if any -188- such removal is made without cause, then the costs of transferring the special servicing responsibilities of the removed Special Servicer to a successor thereto shall be ~~a condition to such appointment that~~ paid by the Certificateholders of the Controlling Class and (iB) the ~~successor Special Servicer be a Qualified Replacement Special Servicer (ii) the successor Special Servicer deliver~~ Controlling Class Representative shall have delivered or caused to the Depositor and each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii) the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice have been delivered to each of the parties hereto a copy of the request for the rating confirmation described in clause (i) of subsection (b) that constitutes a condition to ~~this Agreement that~~ the effectiveness of the removal and/or appointment, simultaneously with or promptly following the delivery of such ~~appointment is void~~request to the Rating Agencies. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator and the Trustee of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders) and the equivalent from each NRSRO hired to provide ratings with respect to any Serviced Companion Loan Securities, the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis, the Trustee shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, during any Senior Consultation Period, if the Trust Advisor determines, in its sole discretion exercised in good faith, that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional information as it deems appropriate) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the then-current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable) (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). Any such termination of an existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed removal and replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s recommendation for replacement of, or determination not to recommend the replacement of, the Special Servicer under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which the related Serviced Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement. (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to ~~this~~ Section ~~6.05~~ 3.28(a) shall be effective ~~until~~ until: (i) the Trustee shall have received (A) ~~a Rating Agency Confirmation~~ written confirmation from each Rating Agency ~~(and,~~ for the Rated Certificates that such removal and/or appointment will not result in ~~the case of any Serviced Loan Combination,~~ an ~~analogous rating agency confirmation from each Companion Loan~~ Adverse Rating ~~Agency, if applicable pursuant to Section 3.27(k))~~ Event with respect to any Class of Rated Certificates rated by such Rating Agency and (for so long as the Marquis Apartments Non-Pooled Mortgage Loan, the Plaza La Cienega Non-Pooled Mortgage Loan or the Garden State Pavilion Non-Pooled Mortgage Loan is serviced and administered under this Agreement) from each applicable Rating Agency for the Marquis Apartments Non-Pooled Mortgage Loan Securities, the Plaza La Cienega Non-Pooled Mortgage Loan Securities or Garden State Pavilion Non-Pooled Mortgage Loan Securities, as applicable, that such removal and/or ~~appointment~~appointment will not result in an Adverse Rating Event with respect to any class of Marquis Apartments Non-Pooled Mortgage Loan Securities, any class of Plaza La Cienega Non-Pooled Mortgage Loan Securities or any class of Garden State Pavilion Non-Pooled Mortgage Loan Securities, as applicable, rated by such Rating Agency, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to ~~that~~ the terminated Special Servicer, and (C) an Opinion of Counsel (~~the~~ which shall not be an expense of ~~which shall be deemed to be part of~~ the ~~expenses of~~ Trustee or the ~~replacement~~Trust) substantially to the effect that (1) the removal of the terminated Special Servicer and/or the appointment of the Person designated to serve as successor thereto is in compliance with this Section 3.28, (2) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (23) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (34) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms; and (ii) if the terminated Special Servicer has been removed without cause, the Certificateholders of the Controlling Class shall have delivered to the Trustee and the terminated Special Servicer such Certificateholders' joint and several undertaking to pay any expenses incurred by the Trustee and the terminated Special Servicer in connection with the transfer of special servicing responsibilities to a successor Special Servicer. (fc) ~~The~~ Any Special Servicer terminated pursuant to ~~this~~ Section ~~6.05~~ 3.28(a) shall be deemed to have been so terminated simultaneously with the designated successor’s 's becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection ~~Account~~ Accounts of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to ~~such~~ the terminated Special Servicer of all outstanding Servicing Advances made by ~~such~~ the terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to ~~such~~ the terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that ~~such~~ the terminated Special Servicer had actually made them), (ii) ~~such~~ the terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) ~~such~~ the terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that ~~such~~ the terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. ~~Such~~ The terminated Special Servicer shall cooperate ~~(time being of the essence in connection with a termination under Section 6.05(b))~~ with the Trustee and the replacement to ~~such~~ the terminated Special Servicer in effecting the transfer of ~~such~~ the terminated Special Servicer’s 's responsibilities and rights hereunder to its successor, including the transfer within two ~~(2)~~ Business Days of its termination becoming effective pursuant to this Section ~~6.05~~3.28, to the replacement to ~~such~~ the terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by ~~such~~ the terminated Special Servicer to the REO Account maintained by it or to any Servicing Account -189- or Reserve Account or should have been delivered to the Master ~~Servicer~~ Servicers or that are thereafter received by or on behalf of ~~such~~ the terminated Special Servicer with respect to any Mortgage Loan or REO Property~~. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05~~.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc)

Replacement of Special Servicer. (a) During any Subordinate Control Period, the Majority Subordinate Certificateholder, or the Subordinate Class Representative on its behalf, will have the right to terminate the Special Servicer, with or without cause, and appoint itself or an Affiliate thereof or another Person as the successor Special Servicer. It shall be a condition to such appointment that (i) the successor Special Servicer be a Qualified Replacement Special ~~Servicer~~ Servicer, (ii) the successor Special Servicer deliver to the Depositor and each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii) the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the ~~Depositor~~ Depositor, or (any Other Depositor, if applicable~~) any Other Depositor~~ , fails to file any required Form 8-8- K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice to each of the parties to this Agreement that such appointment is void. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Certificates on an aggregate basis, requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator and the Trustee of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator ~~and the Trustee~~ of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders) and the equivalent from each NRSRO hired to provide ratings with respect to any Serviced Pari Passu Companion Loan Securities, the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis, the Trustee shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further conditioned on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) In addition, during any Senior Consultation Period, if the Trust Advisor determines, in its sole discretion exercised in good faith, that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the Trust Advisor will have the right to recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented by the Trust Advisor from time to time to cure any ambiguity or error or to incorporate any additional information as it deems appropriate) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the Trust Advisor and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The Trust Advisor’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the allocation of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance Certificates to which such Appraisal Reduction Amounts are allocable) of all Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the Trust Advisor and the then-current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Pari Passu Companion Loan Rating Agency, if applicable) with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies (and, subject to Section 3.27(k), an analogous rating agency confirmation from each Pari Passu Companion Loan Rating Agency, if applicable) (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). Any such termination of an existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the Trust Advisor shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the Trust Advisor’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the Trust Advisor as described above is not consummated within 180 days following the initial recommendation of the Trust Advisor, then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the Trust Advisor in connection with the proposed removal and replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against the Trust Advisor or any other Person based upon or arising from the Trust Advisor’s determination or recommendation for ~~replacement of~~replacement, or determination not to recommend the ~~replacement of~~replacement, of the Special Servicer under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) Notwithstanding anything herein to the contrary, with respect to each Serviced Loan Combination with respect to which ~~the~~ a related Serviced Pari Passu Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Pari Passu Companion Loan Holder shall be entitled to replace the Special Servicer with respect to such Serviced Loan Combination to the extent provided in the related Intercreditor Agreement, and no Special Servicer appointed by such related Serviced Pari Passu Companion Loan Holder (or its representative) with respect to such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section ~~6.05~~ 6.05. For the avoidance of doubt, there is no Serviced Loan Combination with respect to which the related Serviced Pari Passu Companion Loan Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement (~~except to~~ other than the ~~extent, in the case of a Serviced A/B~~ Eastgate One Phases I-VII & XII Loan Combination, the ~~related~~ Eastgate Two Phases VIII-X Loan Combination and the Gateway Portfolio Loan Combination, while such Loan Combination is a Serviced ~~Subordinate Companion~~ Loan ~~Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreement~~Combination). (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to this Section 6.05 shall be effective until the Trustee shall have received (A) a Rating Agency Confirmation from each Rating Agency (and, in the case of any Serviced Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Loan Rating Agency, if applicable pursuant to Section 3.27(k)) with respect to such removal and/or appointment, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to that terminated Special Servicer, and (C) an Opinion of Counsel (the expense of which shall be deemed to be part of the expenses of the replacement) substantially to the effect that (1) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (2) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (3) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms. (f) The Special Servicer terminated pursuant to this Section 6.05 shall be deemed to have been so terminated simultaneously with the designated successor’s becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection Account of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to such terminated Special Servicer of all outstanding Servicing Advances made by such terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to such terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that such terminated Special Servicer had actually made them), (ii) such terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that such terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. Such terminated Special Servicer shall cooperate (time being of the essence in connection with a termination under Section 6.05(b)) with the Trustee and the replacement to such terminated Special Servicer in effecting the transfer of such terminated Special Servicer’s responsibilities and rights hereunder to its successor, including the transfer within two (2) Business Days of its termination becoming effective pursuant to this Section 6.05, to the replacement to such terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by such terminated Special Servicer to the REO Account maintained by it or to any Servicing Account or Reserve Account or should have been delivered to the Master Servicer or that are thereafter received by or on behalf of such terminated Special Servicer with respect to any Mortgage Loan or REO Property. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-Nxs1)

Replacement of Special Servicer. (a) During any Subordinate Control Period, the Majority Subordinate Certificateholder, or the Subordinate Class Representative on its behalf, will have the right to terminate the Special Servicer, with or without cause, and appoint itself or an Affiliate thereof or another Person as the successor Special Servicer. It ~~shall~~ will be a condition to such appointment that (i) the successor Special Servicer be a Qualified Replacement Special Servicer (ii) the successor Special Servicer deliver to the Depositor and each Other Depositor, if applicable, the Form 8-K Disclosure Information in accordance with Section 6.04(d) and (iii) the conditions set forth in subsection (e) be satisfied. Notwithstanding anything to the contrary, if the Depositor or (if applicable) any Other Depositor fails to file any required Form 8-K Current Report in connection with such appointment in a timely manner, such appointment shall be void ab initio, and upon the Trustee’s receipt of notice that the Depositor or Other Depositor, as applicable, has failed to file such required Form 8-K Current Report, the Trustee shall provide notice to each of the parties to this Agreement that such appointment is void. (b) During any Collective Consultation Period or Senior Consultation Period, upon (i) the written direction of Holders of Principal Balance Certificates evidencing not less than ~~25%~~ [25]% of the ~~aggregate~~ Voting Rights (taking into account the allocation of ~~any~~ Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance ~~Certificates to which such Appraisal Reduction Amounts are allocable~~Certificates) ~~of all Certificates on an aggregate basis,~~ requesting a vote to terminate the Special Servicer and appoint a successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any fees and expenses of counsel or any Rating Agency) to be incurred by the Certificate Administrator in connection with administering such vote (which fees and expenses shall not be paid from the Trust Fund) and (iii) delivery by such Holders to the Certificate Administrator ~~and the Trustee~~ of a Rating Agency Confirmation with respect to such termination and appointment of a successor (to be obtained at the expenses solely of such Certificateholders~~) and the equivalent from each NRSRO hired to provide ratings with respect to any Serviced Companion Loan Securities~~), the Certificate Administrator shall post such request on the Certificate Administrator’s Website and conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of Holders of Principal Balance Certificates evidencing at least ~~75%~~ [75]% of the aggregate Voting Rights (taking into account the allocation of ~~any~~ Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance ~~Certificates to which such Appraisal Reduction Amounts are allocable~~Certificates) of all Principal Balance Certificates on an aggregate basis, the ~~Trustee~~ Certificate Administrator shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer that was proposed by the Certificateholders requesting the vote. Such termination and replacement shall be further ~~conditioned~~ conditioned, however, on such successor Special Servicer being a Qualified Replacement Special Servicer and the satisfaction of the conditions set forth in Section 6.05(e) to the extent that such conditions have not otherwise been satisfied. Such termination shall also be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances, and other rights set forth in this Agreement which survive termination. If a proposed termination and replacement of the Special Servicer by Certificateholders as described above is not consummated within 180 days following the initial request of the Certificateholders who requested a vote, then the proposed termination and replacement shall have no further force or effect (except that the Certificate Administrator shall be entitled to apply any amounts prepaid by such Certificateholders for expenses to pay any expenses incurred by the Certificate Administrator). (c) [In addition, during any Senior Consultation Period, if the [Trust ~~Advisor determines, in its sole discretion exercised in good faith,~~ Advisor] determines that the Special Servicer is not performing its duties under this Agreement in accordance with the Servicing Standard, the [Trust ~~Advisor~~ Advisor] will have the right to recommend the replacement of the Special Servicer. In such event, the [Trust ~~Advisor~~ Advisor] shall deliver to the Trustee and the Certificate Administrator, with a copy to the then-current Special Servicer, a written recommendation in electronic format and in the form of Exhibit O-3 attached hereto (which form may be modified or supplemented ~~by the Trust Advisor~~ from time to time to cure any ambiguity or error or to incorporate any additional ~~information as it deems appropriate~~information) detailing the reasons supporting its position and recommending a suggested replacement Special Servicer. In addition, the Certificate Administrator shall post such recommendation on the Certificate Administrator’s Website in accordance with Section 8.12(b), and by mail transmit such recommendation to, conduct the solicitation of votes of, the Holders of all Certificates, according to such procedures (including the establishment of a record date for voting) as it determines. Such notice and solicitation shall state that the proposed replacement, if approved by the Certificateholders, shall be subject to satisfaction of the conditions set forth in Section 6.05(e) within 180 days following the initial recommendation of the [Trust ~~Advisor~~ Advisor] and that any approval granted by the requisite Certificateholders in the aggregate may not be revoked or withdrawn at any time. The [Trust Advisor]’s recommendation to replace the Special Servicer must be confirmed by an affirmative vote of Certificateholders having at least a majority of the aggregate Voting Rights (taking into account the ~~allocation~~ application of any Appraisal Reduction Amounts in respect of the Mortgage Loans to notionally reduce the Class Principal Balances of the Principal Balance ~~Certificates to which such Appraisal Reduction Amounts are allocable~~Certificates) of all Principal Balance Certificates on an aggregate basis. In the event the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Certificate Administrator shall notify the Trustee, the [Trust ~~Advisor~~ Advisor] and the ~~then-~~then current Special Servicer, and the Certificate Administrator shall promptly request a Rating Agency Confirmation from each of the Rating Agencies ~~(and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable)~~ with respect to the proposed removal and replacement, unless such Certificateholders themselves deliver such Rating Agency Confirmation. In the event the Trustee and the Certificate Administrator receive a Rating Agency Confirmation from each of the Rating Agencies ~~(and, subject to Section 3.27(k), an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable)~~ (and the successor Special Servicer agrees to be bound by the terms of this Agreement), the Trustee will then be required to terminate all of the rights and obligations of the Special Servicer under this Agreement and to appoint the successor Special Servicer that has been approved by the Certificateholders and constitutes a Qualified Replacement Special Servicer, and the Certificate Administrator shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.12(b). ~~Any such~~ The termination of an the existing Special Servicer will be subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The Trustee and the [Trust ~~Advisor~~ Advisor] shall cooperate in using reasonable efforts to cause the satisfaction of the conditions to the consummation of such replacement set forth in Section 6.05(e). The reasonable costs and expenses associated with the [Trust Advisor]’s identification of a Qualified Replacement Special Servicer and the Certificate Administrator’s obtaining such Rating Agency Confirmations administering the vote of the Certificateholders shall be an Additional Trust Fund Expense. If a proposed termination and replacement of the Special Servicer recommended by the [Trust ~~Advisor~~ Advisor] as described above is not consummated within 180 days following the initial recommendation of the [Trust Advisor], then (i) the proposed termination and replacement shall have no further force or effect, (ii) the Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 8.12(b) and (iii) the Certificate Administrator shall notify the Trustee and the then-current Special Servicer. The costs and expenses of administering the notices, solicitation of votes and otherwise incurred by the Certificate Administrator, the Trustee or the [Trust ~~Advisor~~ Advisor] in connection with the proposed ~~removal and~~ replacement (including the costs and expenses associated with obtaining Rating Agency Confirmations and the Opinion of Counsel referred to in Section 6.05(e)) shall constitute expenses of the Trust Fund to be paid by withdrawal from the Distribution Account. None of the Special Servicer, any Certificateholder or any other Person shall have any cause of action against ~~the Trust Advisor or~~ any ~~other~~ Person based upon or arising from the [Trust Advisor]’s ~~recommendation for replacement of, or~~ determination ~~not to recommend the replacement of, the Special Servicer~~ under this Section 6.05(c), or the result of the vote of the Certificateholders. (d) ~~Notwithstanding anything herein~~ Any termination and replacement of the Special Servicer pursuant to the ~~contrary,~~ provisions described above will be subject to the further condition that such termination and replacement may not occur with respect to ~~each Serviced~~ any Partitioned Mortgage Loan ~~Combination~~ (but may occur with respect to ~~which~~ all other Mortgage Loans) without the consent of the Controlling Junior Interest Holder (if any). In addition, so long as a Junior Interest Control Appraisal Event has not occurred with respect to a Partitioned Mortgage Loan, the related ~~Serviced Companion Loan~~ Junior Interest Holder is the “Lead Lender”, “Controlling Note Holder”, “Directing Note Holder” or other comparable party under the related Intercreditor Agreement, such related Serviced Companion Loan Holder shall will be entitled to ~~replace~~ terminate the Special Servicer with respect to ~~such Serviced Loan Combination to~~ the ~~extent provided in~~ special servicing of the related ~~Intercreditor Agreement~~Partitioned Mortgage Loan at any time, with or without cause, and no to appoint a replacement Special ~~Servicer appointed by such related Serviced Companion Loan Holder (or its representative)~~ Servicer, subject to satisfaction of the conditions set forth in Section 6.05(e), including obtaining Rating Agency Confirmation with respect to ~~such Serviced Loan Combination may be subsequently terminated pursuant to any of subsections (a) through (c) of this Section 6.05 (except to~~ the extent, in the case of a Serviced A/B Loan Combination, the related Serviced Subordinate Companion Loan Holder is no longer permitted to exercise such right as a result of the occurrence of a “control appraisal period” or similar occurrence under the related Intercreditor Agreementproposed termination and appointment. (e) No removal of the Special Servicer and/or appointment of a successor thereto pursuant to this Section 6.05 shall be effective until the Trustee shall have received (A) a Rating Agency Confirmation from each Rating Agency ~~(and, in the case of any Serviced Loan Combination, an analogous rating agency confirmation from each Companion Loan Rating Agency, if applicable pursuant to Section 3.27(k))~~ with respect to such removal and/or appointment, (B) an Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed by the Person designated to be the successor to ~~that~~ the terminated Special Servicer, and (C) an Opinion of Counsel (the expense of which shall be deemed to be part of the expenses of the replacement) substantially to the effect that (1) such designated Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (2) the Acknowledgment of Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2, has been duly authorized, executed and delivered by such designated Person and (3) upon the execution and delivery of the Acknowledgment of Proposed Special Servicer, such designated Person shall be bound by the terms of this Agreement and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, this Agreement shall be enforceable against such designated Person in accordance with its terms. (f) ~~The~~ Any Special Servicer terminated pursuant to this Section 6.05 shall be deemed to have been so terminated simultaneously with the designated successor’s becoming the Special Servicer hereunder; provided that (i) the terminated Special Servicer shall be entitled to receive, in connection with its termination, payment out of the Collection Account of all of its accrued and unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a), and reimbursement from the successor to such terminated Special Servicer of all outstanding Servicing Advances made by such terminated Special Servicer and all unpaid Advance Interest accrued on such outstanding Servicing Advances (in which case the successor to such terminated Special Servicer shall be deemed to have made such Servicing Advances at the same time that such terminated Special Servicer had actually made them), (ii) such terminated Special Servicer shall thereafter be entitled to Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to be entitled to the benefits of Section 6.03, notwithstanding any such termination; and provided, further, that such terminated Special Servicer shall continue to be obligated to pay (and entitled to receive) all other amounts accrued to (or owing by) it under this Agreement on or prior to the effective date of such termination. Such terminated Special Servicer shall cooperate (time being of the essence in connection with a termination under Section 6.05(b)) with the Trustee and the replacement to such terminated Special Servicer in effecting the transfer of such terminated Special Servicer’s responsibilities and rights hereunder to its successor, including the transfer within two ~~(2)~~ Business Days of its termination becoming effective pursuant to this Section 6.05, to the replacement to such terminated Special Servicer for administration by it of all cash amounts that at the time are or should have been credited by such terminated Special Servicer to the REO Account maintained by it or to any Servicing Account or Reserve Account or should have been delivered to the Master Servicer or that are thereafter received by or on behalf of such terminated Special Servicer with respect to any Mortgage Loan or REO Property. No penalty or fee shall be payable to the terminated Special Servicer in connection with any termination under this Section 6.05.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Securities Inc)

Common use of Replacement of Special Servicer Clause in Contracts