Common use of Rights and Powers of the Directing Holder Clause in Contracts

Rights and Powers of the Directing Holder. (a) Notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to, Section 3.24(d) and (e), Section 9.3(b), Section 9.3(c) and the second (2nd) and third (3rd) paragraphs of this Section 9.3(a), (i) the 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, which consent will be deemed given if the Special Servicer does not object within 15 Business Days (or 90 Business Days with regard to the determination of an Acceptable Insurance Default) unless such actions are part of an Asset Status Report approved by the Directing Holder under Section 3.10(h) (after delivery of a written analysis to the Special Servicer and information reasonably requested by the Special Servicer), and (ii) for so long as a Subordinate Control Period is in effect, the Special Servicer shall not be permitted to (A) consent to the Servicer’s taking any of the actions constituting a Major Decision, or (B) take any of the actions constituting a Major Decision, but subject to Section 3.10(h) as to which the Directing Holder has objected in writing within ten (10) Business Days after receipt of the written analysis and information reasonably requested by the Directing Holder 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, then the Directing Holder shall be deemed to have approved such action). For the avoidance of doubt, if the Directing Holder does not object to any other request for consent required pursuant to the terms hereof within 10 Business Days, such consent will be deemed given. In the event that the Special Servicer or Servicer, as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Directing Holder during any Subordinate Control Period under this Agreement or consultation with the Directing Holder during any Subordinate Consultation Period, is necessary to protect the interests of the Certificateholders, the Special Servicer or Servicer, as applicable, may take any such action without waiting for the Directing Holder’s response. The Special Servicer is not required to obtain the consent of the Directing Holder for any Major Decision during any Subordinate Consultation Period; provided, that, during any Subordinate Consultation Period, the Special Servicer shall consult with the Directing Holder on a non-binding basis in connection with any Major Decision (and such other matters that are subject to consent, approval, direction or consultation rights of the Directing Holder hereunder) and consider alternative actions recommended by the Directing Holder, in respect thereof. In addition, for so long as a Subordinate Control Period is in effect, subject to Section 9.3(b), Section 9.3(c) and the immediately following paragraph, the Directing Holder may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to the Mortgage Loan as the Directing Holder may reasonably deem advisable. If the Special Servicer or Servicer, as applicable, determines that a refusal to consent by the Directing Holder or any direction or advice from the Directing Holder would (A) otherwise require or cause the Special Servicer or Servicer, as applicable, to violate the terms of the Loan Documents, the Co-Lender Agreement, applicable law, provisions of the Code resulting in an Adverse REMIC Event or this Agreement, (including without limitation, actions inconsistent with Accepted Servicing Practices), or (B) expose any Certificateholder, the Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Trust or their respective Affiliates, officers, directors or agent to any claim, suit or liability, (C) result in the imposition of a tax upon the Trust or loss of REMIC status or (D) materially expand the scope of the Special Servicer’s, the Servicer’s, the Trustee’s or the Certificate Administrator’s responsibilities hereunder, then the Special Servicer or Servicer, as applicable, shall disregard such refusal to consent, direction or advice and notify the Directing Holder, the Trustee, the Certificate Administrator and the 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 Servicer or Special Servicer in accordance with the direction of or approval of the Directing Holder that does not violate the Loan Documents, the Co-Lender Agreement, this Agreement, any applicable law, provisions of the Code resulting in an Adverse REMIC Event or Accepted Servicing Practices or any other provisions of this Agreement, shall not result in any liability on the part of the Servicer or the Special Servicer.

Rights and Powers of the Directing Holder. (a) Notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to, Section 3.24(d) and (e), Section 9.3(b), Section 9.3(c) and the second (2nd) and third (3rd) paragraphs of this Section 9.3(a), (i) the 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, which consent will be deemed given if the Special Servicer does not object within 15 Business Days (or 90 Business Days with regard to the determination of an Acceptable Insurance Default) unless such actions are part of an Asset Status Report approved by the Directing Holder under Section 3.10(h) (after delivery of a written analysis to the Special Servicer and information reasonably requested by the Special Servicer), and (ii) for so long as a Subordinate Control Period is in effect, the Special Servicer shall not be permitted to (A) consent to the Servicer’s taking any of the actions constituting a Major Decision, or (B) take any of the actions constituting a Major Decision, but subject to Section 3.10(h) as to which the Directing Holder has objected in writing within ten (10) Business Days after receipt of the written analysis and information reasonably requested by the Directing Holder 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, then the Directing Holder shall be deemed to have approved such action). For the avoidance of doubt, if the Directing Holder does not object to any other request for consent required pursuant to the terms hereof within 10 Business Days, such consent will be deemed given. In the event that the Special Servicer or Servicer, as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Directing Holder during any Subordinate Control Period under this Agreement or consultation with the Directing Holder during any Subordinate Consultation Period, is necessary to protect the interests of the Certificateholders, the Special Servicer or Servicer, as applicable, may take any such action without waiting for the Directing Holder’s response. The Special Servicer is not required to obtain the consent of the Directing Holder for any Major Decision during any Subordinate Consultation Period; provided, that, during any Subordinate Consultation Period, the Special Servicer shall consult with the Directing Holder on a non-binding basis in connection with any Major Decision (and such other matters that are subject to consent, approval, direction or consultation rights of the Directing Holder hereunder) and consider alternative actions recommended by the Directing Holder, in respect thereof. In addition, for so long as a Subordinate Control Period is in effect, subject to Section 9.3(b), Section 9.3(c) and the immediately following paragraph, the Directing Holder may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to the Mortgage Loan as the Directing Holder may reasonably deem advisable. If the Special Servicer or Servicer, as applicable, determines that a refusal to consent by the Directing Holder or any direction or advice from the Directing Holder would (A) otherwise require or cause the Special Servicer or Servicer, as applicable, to violate the terms of the Loan Documents, the Co-Lender Agreement, applicable law, provisions of the Code resulting in an Adverse REMIC Event or this Agreement, (including without limitation, actions inconsistent with Accepted Servicing Practices), or (B) expose any Certificateholder, the Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Trust or their respective Affiliates, officers, directors or agent to any claim, suit or liability, (C) result in the imposition of a tax upon the Trust or loss of REMIC status or (D) materially expand the scope of the Special Servicer’s, the Servicer’s, the Trustee’s or the Certificate Administrator’s responsibilities hereunder, then the Special Servicer or Servicer, as applicable, shall disregard such refusal to consent, direction or advice and notify the Directing Holder, the Trustee, the Certificate Administrator and the 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 Servicer or Special Servicer in accordance with the direction of or approval of the Directing Holder that does not violate the Loan Documents, the Co-Lender Agreement, this Agreement, any applicable law, provisions of the Code resulting in an Adverse REMIC Event or Accepted Servicing Practices or any other provisions of this Agreement, shall not result in any liability on the part of the Servicer or the Special Servicer.