Common use of The Directing Holder and the Controlling Class Representative Clause in Contracts

The Directing Holder and the Controlling Class Representative.

The Directing Holder and the Controlling Class Representative. (a) For so long as no Control Termination Event has occurred and is continuing, the related Directing Holder shall be entitled to advise the Special Servicer (1) with respect to the applicable Serviced Loan(s) that are Specially Serviced Loan(s) and (2) with respect to the applicable Serviced Loan(s) that are Performing Serviced Loan(s), as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), (a) the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (provided that if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision), and (b) for so long as no applicable Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the related Directing Holder has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer (provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the related Directing Holder will be deemed to have approved such action); and provided, further, that, as to both clause (a) and clause (b) above, in the event that the Special Servicer or Master Servicer (in the event the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the related Directing Holder prior to the occurrence and continuance of an applicable Control Termination Event, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Loan Combination, the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, with respect to any Serviced Loan Combination, the related Serviced Companion Loan Holder(s) constituted a single lender (and, with respect to a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan)), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Directing Holder’s (or, if applicable, the Special Servicer’s) response. The Special Servicer is not required to obtain the consent of the related Directing Holder for any Major Decision following the occurrence and during the continuance of an applicable Control Termination Event; provided that, after the occurrence and during the continuance of an applicable Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the related Directing Holder (until the occurrence and continuance of an applicable Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the related Directing Holder and the Operating Advisor, but only to the extent such consultation with, or consent of, the related Directing Holder would have been required prior to the occurrence and continuance of such applicable Control Termination Event. For the avoidance of doubt, with respect to any Serviced AB Loan Combination, the Special Servicer shall be responsible for obtaining any consent or deemed consent of the related Directing Holder for “Major Decisions” (as such term is defined in the related Co-Lender Agreement) to the extent such consent is required under this Agreement or under the terms of the related Co-Lender Agreement. In addition, unless an applicable Control Termination Event has occurred and is continuing, each of (x) the Controlling Class Representative (with respect to each Serviced Loan other than a Serviced Outside Controlled Pari Passu Loan Combination and, in the case of any Serviced AB Loan Combination, after the occurrence of an applicable Subordinate Companion Loan Control Termination Event) and (y) the related Outside Controlling Note Holder (with respect to a Serviced Outside Controlled Pari Passu Loan Combination) may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to the applicable Serviced Loan(s) as such party may reasonably deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection, advice or consultation contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any related Loan Documents, any related Co-Lender Agreement, any intercreditor agreement, applicable law, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Fund or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities under this Agreement or any Co-Lender Agreement or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by a Directing Holder or any advice from a Directing Holder would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Loan Documents, any related Co-Lender Agreement or mezzanine intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing such Directing Holder, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, any action by the Master Servicer or Special Servicer in accordance with the direction of or approval of a Directing Holder that does not violate any law or the Servicing Standard or any other provisions of this Agreement, will not result in any liability on the part of the Master Servicer or the Special Servicer. For so long as no CCR Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to, with respect to each Outside Serviced Trust Loan, exercise the consent or approval rights set forth in Section 3.01(i) of this Agreement, exercise consultation rights in respect of “Major Decisions” (or any analogous concept) under, and within the meaning of, the applicable Other Pooling and Servicing Agreement and attend an annual meeting with the related Outside Servicer and the related Outside Special Servicer, in each case, to the extent the holder of such Outside Serviced Trust Loan is entitled to such rights pursuant to the related Co-Lender Agreement. The Directing Holder will have no liability to the Trust Fund or Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees, by its acceptance of its Certificates, that: (i) a Directing Holder may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) a Directing Holder may act solely in its own interests (or, in the case of the Controlling Class Representative, in the interests of the Holders of the Controlling Class); (iii) a Directing Holder does not have any liability or duties to the Holders of any Class of Certificates (other than, in the case of the Controlling Class Representative, the Controlling Class); (iv) a Directing Holder may take actions that favor its own interests (or in the case of the Controlling Class Representative, the interests of the Holders of the Controlling Class) over the interests of the Holders of one or more other Classes of Certificates; and (v) a Directing Holder shall have no liability whatsoever (other than, in the case of the Controlling Class Representative, to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and that no Certificateholder may take any action whatsoever against any Directing Holder or any affiliate, director, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that the rights of a Directing Holder are subject to any related mezzanine intercreditor agreement.

The Directing Holder and the Controlling Class Representative. (a) The related Directing Holder (unless, if the Controlling Class Representative is the related Directing Holder, a Control Termination Event has occurred and is continuing or the subject Mortgage Loan is an Excluded Mortgage Loan) shall be entitled: (1) with respect to the applicable Serviced Loan(s) that are Specially Serviced Loan(s), to advise the Special Servicer as to all Major Decisions; (2) with respect to the applicable Serviced Loan(s) that are Performing Serviced Loan(s), to advise the Special Servicer as to all Major Decisions; and (3) in the case of the Controlling Class Representative, with respect to any Outside Serviced Mortgage Loan, to exercise consultation and, to the extent provided in Section 3.01(i), consent rights (if any) and attend annual meetings with the related Outside Servicer and the related Outside Special Servicer, in each case, to the extent the holder of such Outside Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), (a) the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (provided that if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented to such Major Decision), and (b) the Special Servicer shall not be permitted (if the Controlling Class Representative is the related Directing Holder, for so long as no Control Termination Event exists) to take, or to consent to the Master Servicer’s taking, any of the actions constituting a Major Decision as to which the related Directing Holder has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days (or, in the case of a Serviced Outside Controlled Loan Combination, such other period contemplated by the related Co-Lender Agreement)) after receipt of the written recommendation and analysis from the Special Servicer (provided that (i) if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period (or, in the case of a Serviced Outside Controlled Loan Combination, such other period contemplated by the related Co-Lender Agreement), as applicable, then the related Directing Holder will be deemed to have approved such action and (ii) the consent of the Controlling Class Representative shall not be required in connection with a Major Decision with respect to an Excluded Mortgage Loan); and provided, further, that, as to both clause (a) and clause (b) above, in the event that the Special Servicer or Master Servicer (in the event the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the related Directing Holder, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Loan Combination, the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, with respect to any Serviced Loan Combination, the related Serviced Companion Loan Holder(s) constituted a single lender (and, with respect to a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan)), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Directing Holder’s (or, if applicable, the Special Servicer’s) response. Notwithstanding the foregoing, if the Controlling Class Representative is the related Directing Holder, the Special Servicer is not required to obtain the consent of the Controlling Class Representative prior to taking, or consenting to the Master Servicer’s taking of, any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Controlling Class Representative (other than with respect to any Excluded Mortgage Loan and only until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; and provided, further, that the Controlling Class Representative (with respect to any Serviced Outside Controlled Loan Combination that does not include an Excluded Mortgage Loan and for so long as no Consultation Termination Event exists) and the Operating Advisor (if a Control Termination Event exists) may consult regarding a Serviced Outside Controlled Loan Combination only if and to the extent that the holder of the related Split Mortgage Loan is granted consultation rights under the related Co-Lender Agreement. For the avoidance of doubt, with respect to any Serviced Outside Controlled Loan Combination, the Special Servicer shall be responsible for obtaining any consent or deemed consent of the related Outside Controlling Note Holder for “Major Decisions” (as such term or any analogous term is defined in the related Co-Lender Agreement) to the extent such consent is required under this Agreement or under the terms of the related Co-Lender Agreement. Notwithstanding the foregoing, the Controlling Class Representative shall have no consent or consultation rights with respect to Major Decisions with respect to any Excluded Mortgage Loan. In addition, each of (x) the Controlling Class Representative (with respect to each Serviced Loan other than (i) a Serviced Outside Controlled Loan Combination and (ii) an Excluded Mortgage Loan, and provided that a Control Termination Event does not exist) and (y) the related Outside Controlling Note Holder (with respect to a Serviced Outside Controlled Loan Combination) may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to the applicable Serviced Loan(s) as such party may reasonably deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection, advice or consultation contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate the terms of any Mortgage Loan or Serviced Loan Combination, any provision of any related Loan Documents, any related Co-Lender Agreement, any intercreditor agreement, applicable law, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller or any party to this Agreement or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or cause either Trust REMIC to fail to qualify as a REMIC or the Grantor Trust (if any) to fail to qualify as a grantor trust for federal income tax purposes, or result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions, or materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities under this Agreement or any Co-Lender Agreement or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by a Directing Holder or any advice from a Directing Holder would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Loan Documents, any related Co-Lender Agreement or mezzanine intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing such Directing Holder, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, any action by the Master Servicer or Special Servicer in accordance with the direction of or approval of a Directing Holder that does not violate any law or the Servicing Standard or any other provisions of this Agreement, will not result in any liability on the part of the Master Servicer or the Special Servicer. For so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled, with respect to each Outside Serviced Mortgage Loan other than any Excluded Mortgage Loan, to exercise the consent or approval rights set forth in Section 3.01(i) of this Agreement; and for so long as no Consultation Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled, with respect to each Outside Serviced Mortgage Loan other than any Excluded Mortgage Loan, to exercise any consultation rights permitted under the related Co-Lender Agreement in respect of “Major Decisions” (or any analogous concept) and the implementation