Common use of The Directing Certificateholder Clause in Contracts

The Directing Certificateholder. (a) The Directing Certificateholder shall have no liability whatsoever to the Trust Fund or any Certificateholder other than the Controlling Class Certificateholders and shall have no liability to any Controlling Class Certificateholder for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that, with respect to Controlling Class Certificateholders, the Directing Certificateholder shall not be protected against any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Directing Certificateholder may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Directing Certificateholder may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Directing Certificateholder may act solely in the interests of the Holders of the Controlling Class, that the Directing Certificateholder does not have any duties to the Holders of any Class of Certificates other than the Controlling Class, that the Directing Certificateholder may take actions that favor the interests of the Holders of the Controlling Class over the interests of the Holders of one or more other classes of Certificates, that the Directing Certificateholder, absent willful misfeasance, bad faith or negligence, shall not be deemed to have been negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance, by reason of its having acted solely in the interests of the Holders of the Controlling Class, and that the Directing Certificateholder shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Directing Certificateholder or any director, officer, employee, agent or principal thereof for having so acted. (b) Within five Business Days of receipt of written notice that a new Directing Certificateholder has been selected, the Trustee shall deliver notice to the Servicers and the Special Servicer, of such Directing Certificateholder's identity. [End of Article VI]

The Directing Certificateholder. The Directing Certificateholder (aor with respect to the Newport Mortgage Loan, the Newport Representative in consultation with the Directing Certificateholder) shall be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer with respect to any Mortgage Loan, and notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to, the second paragraph of this Section 6.07, the Special Servicer shall not be permitted to take any of the following actions as to which the Directing Certificateholder (or with respect to the Newport Mortgage Loan, the Newport Representative in consultation with the Directing Certificateholder) has objected in writing within 5 Business Days of having received the Special Servicer's written recommendation and all information and documents the Directing Certificateholder may reasonably request (provided that if such written objection has not been received by the Special Servicer within such 5 Business Day period, then the Directing Certificateholder (or with respect to the Newport Mortgage Loan, the Newport Representative in consultation with the Directing Certificateholder) will be deemed to have waived its right to object): (i) any proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Mortgage Loans as come into and continue in default; (ii) any modification of a monetary term of a Mortgage Loan; (iii) any proposed sale of a Defaulted Mortgage Loan or REO Property (other than in connection with the termination of the Trust Fund) for less than the applicable Purchase Price; (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral for a Mortgage Loan other than pursuant to the specific terms of the related Mortgage Loan; (vi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause with respect to a Mortgage Loan; (vii) any management company changes or franchise changes with respect to a Mortgage Loan for which the Servicer is required to consent or approve; (viii) releases of any escrows, reserves or letters of credit held as performance or "earn-out" reserves or escrows; and (ix) any acceptance of an assumption agreement releasing a borrower from liability under a Mortgage Loan other than pursuant to the specific terms of such Mortgage Loan; provided that, in the event that the Special Servicer determines that immediate action is necessary to protect the interests of the Certificateholders (as a collective whole), the Special Servicer may take any such action without waiting for the Directing Certificateholder's (or with respect to the Newport Mortgage Loan, the Newport Representative's) response. In addition, the Directing Certificateholder (or with respect to the Newport Mortgage Loan, the Newport Representative in consultation with the Directing Certificateholder) may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Specially Serviced Mortgage Loan as the Directing Certificateholder (or with respect to the Newport Mortgage Loan, the Newport Representative in consultation with the Directing Certificateholder) may deem advisable or as to which provision is otherwise made herein; provided that notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph, may require or cause the Special Servicer to violate any provision of this Agreement or the REMIC Provisions, including without limitation the Special Servicer's obligation to act in accordance with the Servicing Standards, or expose the Servicer, the Special Servicer, the Paying Agent, the Trust Fund or the Trustee to liability, or materially expand the scope of the Special Servicer's responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. Notwithstanding the foregoing, in the event the Directing Certificateholder and the Newport Representative do not agree on a course of action with respect to the Newport Mortgage Loan, the determination of the Newport Representative shall control. Any costs and expenses incurred by the Special Servicer in obtaining such consent will be borne by the Directing Certificateholder. In the event the Special Servicer determines that a refusal to consent by the Directing Certificateholder or the Newport Representative or any advice from the Directing Certificateholder or the Newport Representative would otherwise cause the Special Servicer to violate the terms of this Agreement, including without limitation, the Servicing Standards, the Special Servicer shall disregard such refusal to consent or advice and notify the Directing Certificateholder, the Trustee and the Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The Directing Certificateholder shall have no liability whatsoever to the Trust Fund or any Certificateholder other than the Controlling Class Certificateholders and shall have no liability to any Controlling Class Certificateholder for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that, with respect to Controlling Class Certificateholders, that the Directing Certificateholder shall not be protected against any liability to the Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Directing Certificateholder may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Directing Certificateholder may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Directing Certificateholder may act solely in the interests of the Holders of the Controlling Class, that the Directing Certificateholder does not have any duties to the Holders of any Class of Certificates other than the Controlling Class, that the Directing Certificateholder may take actions that favor the interests of the Holders of the Controlling Class over the interests of the Holders of one or more other classes of Certificates, that the Directing Certificateholder, absent willful misfeasance, bad faith or negligence, Certificateholder shall not be deemed liable to have been negligent or reckless, or to have acted in bad faith or engaged in willful misfeasanceany Certificateholder, by reason of its having acted solely in the interests of the Holders of the Controlling Class, and that the Directing Certificateholder shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Directing Certificateholder or any director, officer, employee, agent or principal thereof for having so acted. (b) Within five Business Days of receipt of written notice that a new Directing Certificateholder has been selected, the Trustee shall deliver notice to the Servicers and the Special Servicer, of such Directing Certificateholder's identity. [End of Article VI]