Sale of Defaulted Mortgage Loans. (a) Promptly upon a Mortgage Loan becoming a Defaulted Mortgage Loan and if the Special Servicer determines in accordance with the Servicing Standard that it would be in the best interests of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender) to attempt to sell such Defaulted Mortgage Loan, the Special Servicer shall use reasonable efforts to solicit offers for such Defaulted Mortgage Loan on behalf of the Certificateholders in such manner as will be reasonably likely to realize a fair price. Subject to the provisions of this Section 9.17 and Section 10.3, the Special Servicer shall accept the first (and, if multiple offers are contemporaneously received, the highest) cash offer received from any Person that constitutes a fair price for such Defaulted Mortgage Loan. (b) The Special Servicer shall give the Trustee, the Certificate Administrator, the 17g-5 Information Provider, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Master Servicer, the Trust Advisor (other than during any Subordinate Control Period) and the holder of any related B Note or Serviced Companion Loan not less than five (5) Business Days’ prior written notice of its intention to sell any Defaulted Mortgage Loan. No Interested Person shall be obligated to submit an offer to purchase any Defaulted Mortgage Loan, and notwithstanding anything to the contrary contained herein, neither the Trustee, in its individual capacity, nor any of its Affiliates may make an offer for or purchase any Defaulted Mortgage Loan pursuant hereto. (c) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan for purposes of this Section 9.17 shall be determined by the Special Servicer, if the highest offer is from a Person other than an Interested Person, or by the Trustee (determined either by itself or by retaining an independent third party as set forth below), if the highest offer is from an Interested Person; provided that, no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least one (1) other offer is received from an independent third party. In all cases under this Section 9.17, in determining whether any offer received from an Interested Person represents a fair price for any Defaulted Mortgage Loan, the Trustee, if making such determination itself, shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. The appraiser conducting any such new appraisal shall be an Appraiser selected by the Special Servicer if no Interested Person is making an offer with respect to a Defaulted Mortgage Loan and selected by the Trustee if an Interested Person is so making an offer. The cost of any such narrative appraisal shall be covered by, and shall be reimbursable as, a Servicing Advance. Where any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan, the Special Servicer shall require that all offers be submitted to the Trustee in writing and be accompanied by a refundable cash deposit in an amount equal to 5% of the offered amount from the person making such offer. Such refundable cash deposits shall be held in an escrow account maintained and administered by the Special Servicer unless the Special Servicer is an offeror. In such case, the refundable cash deposits shall be held in an escrow account maintained and administered by the Certificate Administrator. With respect to any such account to be established and maintained by the Certificate Administrator, the Special Servicer shall provide written notice to the Certificate Administrator that such account is necessary, which notice shall contain the wiring instructions for each bidding party to be used to return such funds to each bidder not selected as the winning bidder. After the Certificate Administrator establishes such escrow account the Special Servicer shall deliver the applicable refundable cash deposits to such account. The Certificate Administrator shall be entitled to rely conclusively on the information in such notice. At the conclusion of the bidding process, the Special Servicer or the Certificate Administrator, as applicable, shall return the deposit of all bidders not selected as the winning bidder. In determining whether any such offer from a Person other than an Interested Person constitutes a fair price for any such Defaulted Mortgage Loan, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative appraisal that it may have obtained pursuant to this Agreement within the prior nine (9) months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Defaulted Mortgage Loan, any appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the Defaulted Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Purchase Price for any Defaulted Mortgage Loan shall in all cases be deemed a fair price. Notwithstanding anything contained in this paragraph to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the Trust) designate an independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing or investing in mortgage loans similar to the subject Mortgage Loan, that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for such Mortgage Loan. If the Trustee designates such a third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination. The reasonable costs of all appraisals, inspection reports and broker opinions of value, incurred by any such third party pursuant to this paragraph will be covered by, and will be reimbursable as, a Servicing Advance; provided that, the Trustee shall not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee. (d) Subject to the other subsections of this Section 9.17, the Special Servicer shall act on behalf of the Trust in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerors, and may retain, fees that approximate the Special Servicer’s actual costs in the preparation and delivery of information pertaining to such sales or exchanging offers without obligation to deposit such amounts into the Collection Account. Any sale of any Defaulted Mortgage Loan shall be for cash. Any sale of any Defaulted Mortgage Loan shall be final and without recourse to the Trustee, the Certificate Administrator or the Trust (except such recourse to the Trust imposed by those representations and warranties typically given in such transactions and any customary closing matters), and if such sale is consummated in accordance with the terms of this Agreement, none of the Special Servicer, the Master Servicer, the Depositor, the Certificate Administrator or the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (e) Subject to the rights of a holder of any related B Note, Serviced Companion Loan or mezzanine loan, under the respective Intercreditor Agreement or mezzanine loan intercreditor agreement, as applicable, to purchase a Mortgage Loan, unless and until a Defaulted Mortgage Loan is sold pursuant to this Section 9.17, the Special Servicer shall continue to service and administer such Mortgage Loan in accordance with the Servicing Standard and this Agreement and shall pursue such other resolutions or recovery strategies including workout, foreclosure or sale of such Mortgage Loan, as is consistent with this Agreement and the Servicing Standard. (f) The purchase price for any Defaulted Mortgage Loan purchased under this Section 9.17 shall be remitted to the Master Servicer for deposit into the Collection Account, and the Custodian (on the Trustee’s behalf), upon receipt of a request for release from the Master Servicer or the Special Servicer, as applicable, to the Custodian and the Trustee, shall release or cause to be released to the purchaser of the Defaulted Mortgage Loan the related Mortgage File, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be necessary to vest in such purchaser ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer (to the extent it has possession of such file) and the Master Servicer (to the extent it has possession of such file) shall deliver the related Servicer Mortgage File to such purchaser. (g) Notwithstanding any of the foregoing paragraphs of this Section 9.17, but subject to Section 10.3, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines (in consultation with the Trust Advisor, during any Collective Consultation Period and any Senior Consultation Period, and subject to the rights of the Controlling Class Representative set forth in Section 10.3), in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender), and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in its reasonable and good faith judgment, that acceptance of such offer would be in the best interests of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender) (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms offered by the prospective buyer making the lower offer are more favorable). (h) In no event shall the Trust or the Trustee, the Master Servicer or the Special Servicer on the Trustee’s behalf purchase, or pay or advance costs to purchase, any B Note or Serviced Companion Loan. (i) Notwithstanding anything to the contrary herein, any purchase of a Defaulted Mortgage Loan pursuant to this Section 9.17 will remain subject to the cure and purchase rights of, in each case if applicable, the holder of any related B Note or Serviced Companion Loan as set forth in the related Intercreditor Agreement and any holder of a related mezzanine loan as set forth in the related mezzanine loan intercreditor agreement. The Special Servicer shall determine the price to be paid in accordance with the terms of the Intercreditor Agreement or the related mezzanine loan intercreditor agreement in connection with any such purchase rights in favor of the holder of the related B Note, Serviced Companion Loan or mezzanine loan, as applicable, and shall provide such notices to the holder of the related B Note, Serviced Companion Loan or mezzanine loan, as applicable, as are required by the Intercreditor Agreement or the related mezzanine loan intercreditor agreement, as the case may be, in connection with each such holders’ purchase rights.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2012-C6), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2012-C6)
Sale of Defaulted Mortgage Loans. (a) Promptly upon a Mortgage Loan becoming a Defaulted Mortgage Loan and if the Special Servicer determines in accordance with the Servicing Standard that it would be in the best interests of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender) to attempt to sell such Defaulted Mortgage Loan, the Special Servicer shall use reasonable efforts to solicit offers for such Defaulted Mortgage Loan on behalf of the Certificateholders in such manner as will be reasonably likely to realize a fair price. Subject to the provisions of this Section 9.17 and Section 10.3, the Special Servicer shall accept the first (and, if multiple offers are contemporaneously received, the highest) cash offer received from any Person that constitutes a fair price for such Defaulted Mortgage Loan.
(b) The Special Servicer shall give the Trustee, the Certificate Administrator, the Custodian, the 17g-5 Information Provider, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Master Servicer, the Trust Advisor (other than during any Subordinate Control Period) and the holder of any related B Note or Serviced Companion Loan not less than five (5) Business Days’ prior written notice of its intention to sell any Defaulted Mortgage Loan. No Interested Person shall be obligated to submit an offer to purchase any Defaulted Mortgage Loan, and notwithstanding anything to the contrary contained herein, neither the Trustee, in its individual capacity, nor any of its Affiliates may make an offer for or purchase any Defaulted Mortgage Loan pursuant hereto.
(c) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan for purposes of this Section 9.17 shall be determined by the Special Servicer, if the highest offer is from a Person other than an Interested Person, or by the Trustee (determined either by itself or by retaining an independent third party as set forth below), if the highest offer is from an Interested Person; provided that, no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least one (1) other offer is received from an independent third party. In all cases under this Section 9.17, in determining whether any offer received from an Interested Person represents a fair price for any Defaulted Mortgage Loan, the Trustee, if making such determination itself, shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. The appraiser conducting any such new appraisal shall be an Appraiser selected by the Special Servicer if no Interested Person is making an offer with respect to a Defaulted Mortgage Loan and selected by the Trustee if an Interested Person is so making an offer. The cost of any such narrative appraisal shall be covered by, and shall be reimbursable as, a Servicing Advance. Where any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan, the Special Servicer shall require that all offers be submitted to the Trustee in writing and be accompanied by a refundable cash deposit in an amount equal to 5% of the offered amount from the person making such offer. Such refundable cash deposits shall be held in an escrow account maintained and administered by the Special Servicer unless the Special Servicer is an offeror. In such case, the refundable cash deposits shall be held in an escrow account maintained and administered by the Certificate Administrator. With respect to any such account to be established and maintained by the Certificate Administrator, the Special Servicer shall provide written notice to the Certificate Administrator that such account is necessary, which notice shall contain the wiring instructions for each bidding party to be used to return such funds to each bidder not selected as the winning bidder. After the Certificate Administrator establishes such escrow account the Special Servicer shall deliver the applicable refundable cash deposits to such account. The Certificate Administrator shall be entitled to rely conclusively on the information in such notice. At the conclusion of the bidding process, the Special Servicer or the Certificate Administrator, as applicable, shall return the deposit of all bidders not selected as the winning bidder. In determining whether any such offer from a Person other than an Interested Person constitutes a fair price for any such Defaulted Mortgage Loan, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative appraisal that it may have obtained pursuant to this Agreement within the prior nine (9) months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Defaulted Mortgage Loan, any appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the Defaulted Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Purchase Price for any Defaulted Mortgage Loan shall in all cases be deemed a fair price. Notwithstanding anything contained in this paragraph to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the Trust) designate an independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing or investing in mortgage loans similar to the subject Mortgage Loan, that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for such Mortgage Loan. If the Trustee designates such a third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination. The reasonable costs of all appraisals, inspection reports and broker opinions of value, incurred by any such third party pursuant to this paragraph will be covered by, and will be reimbursable as, a Servicing Advance; provided that, the Trustee shall not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee.
(d) Subject to the other subsections of this Section 9.17, the Special Servicer shall act on behalf of the Trust in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerors, and may retain, fees that approximate the Special Servicer’s actual costs in the preparation and delivery of information pertaining to such sales or exchanging offers without obligation to deposit such amounts into the Collection Account. Any sale of any Defaulted Mortgage Loan shall be for cash. Any sale of any Defaulted Mortgage Loan shall be final and without recourse to the Trustee, the Certificate Administrator Administrator, the Custodian or the Trust (except such recourse to the Trust imposed by those representations and warranties typically given in such transactions and any customary closing matters), and if such sale is consummated in accordance with the terms of this Agreement, none of the Special Servicer, the Master Servicer, the Depositor, the Custodian, the Certificate Administrator or the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee.
(e) Subject to the rights of a holder of any related B Note, Serviced Companion Loan or mezzanine loan, under the respective Intercreditor Agreement or mezzanine loan intercreditor agreement, as applicable, to purchase a Mortgage Loan, unless and until a Defaulted Mortgage Loan is sold pursuant to this Section 9.17, the Special Servicer shall continue to service and administer such Mortgage Loan in accordance with the Servicing Standard and this Agreement and shall pursue such other resolutions or recovery strategies including workout, foreclosure or sale of such Mortgage Loan, as is consistent with this Agreement and the Servicing Standard.
(f) The purchase price for any Defaulted Mortgage Loan purchased under this Section 9.17 shall be remitted to the Master Servicer for deposit into the Collection Account, and the Custodian (on the Trustee’s behalf), upon receipt of a request for release from the Master Servicer or the Special Servicer, as applicable, to the Custodian and the Trustee, shall release or cause to be released to the purchaser of the Defaulted Mortgage Loan the related Mortgage File, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be necessary to vest in such purchaser ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer (to the extent it has possession of such file) and the Master Servicer (to the extent it has possession of such file) shall deliver the related Servicer Mortgage File to such purchaser.
(g) Notwithstanding any of the foregoing paragraphs of this Section 9.17, but subject to Section 10.3, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines (in consultation with the Trust Advisor, during any Collective Consultation Period and any Senior Consultation Period, and subject to the rights of the Controlling Class Representative set forth in Section 10.3), in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender), and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in its reasonable and good faith judgment, that acceptance of such offer would be in the best interests of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender) (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms offered by the prospective buyer making the lower offer are more favorable).
(h) In no event shall the Trust or the Trustee, the Master Servicer or the Special Servicer on the Trustee’s behalf purchase, or pay or advance costs to purchase, any B Note or Serviced Companion Loan.
(i) Notwithstanding anything to the contrary herein, any purchase of a Defaulted Mortgage Loan pursuant to this Section 9.17 will remain subject to the cure and purchase rights of, in each case if applicable, the holder of any related B Note or Serviced Companion Loan as set forth in the related Intercreditor Agreement and any holder of a related mezzanine loan as set forth in the related mezzanine loan intercreditor agreement. The Special Servicer shall determine the price to be paid in accordance with the terms of the Intercreditor Agreement or the related mezzanine loan intercreditor agreement in connection with any such purchase rights in favor of the holder of the related B Note, Serviced Companion Loan or mezzanine loan, as applicable, and shall provide such notices to the holder of the related B Note, Serviced Companion Loan or mezzanine loan, as applicable, as are required by the Intercreditor Agreement or the related mezzanine loan intercreditor agreement, as the case may be, in connection with each such holders’ purchase rights.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2012-C5), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2012-C5)
Sale of Defaulted Mortgage Loans. (a) Promptly upon a Mortgage Loan becoming a Defaulted Mortgage Loan and if the Special Servicer determines in accordance with the Servicing Standard that it would be in the best interests of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender) to attempt to sell such Defaulted Mortgage Loan, the Special Servicer shall use reasonable efforts to solicit offers for such Defaulted Mortgage Loan on behalf of the Certificateholders in such manner as will be reasonably likely to realize a fair price. Subject to the provisions of this Section 9.17 and Section 10.3, the Special Servicer shall accept the first (and, if multiple offers are contemporaneously received, the highest) cash offer received from any Person that constitutes a fair price for such Defaulted Mortgage Loan.
(b) The Special Servicer shall give the Trustee, the Certificate Administrator, the 17g-5 Information Provider, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Master Servicer, the Trust Advisor (other than during any Subordinate Control Period) and the holder of any related B Note or Serviced Companion Loan not less than five (5) Business Days’ prior written notice of its intention to sell any Defaulted Mortgage Loan. No Interested Person shall be obligated to submit an offer to purchase any Defaulted Mortgage Loan, and notwithstanding anything to the contrary contained herein, neither the Trustee, in its individual capacity, nor any of its Affiliates may make an offer for or purchase any Defaulted Mortgage Loan pursuant hereto.
(c) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan for purposes of this Section 9.17 shall be determined by the Special Servicer, if the highest offer is from a Person other than an Interested Person, or by the Trustee (determined either by itself or by retaining an independent third party as set forth below), if the highest offer is from an Interested Person; provided provided, however, that, no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least one (1) other offer is received from an independent third party. In all cases under this Section 9.17, in determining whether any offer received from an Interested Person represents a fair price for any Defaulted Mortgage Loan, the Trustee, if making such determination itself, shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding nine (9) 9 month period or, in the absence of any such Appraisal, on a new Appraisal. The appraiser conducting any such new appraisal shall be an Appraiser selected by the Special Servicer if no Interested Person is making an offer with respect to a Defaulted Mortgage Loan and selected by the Trustee if an Interested Person is so making an offer. The cost of any such narrative appraisal shall be covered by, and shall be reimbursable as, a Servicing Advance. Where any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan, the Special Servicer shall require that all offers be submitted to the Trustee in writing and be accompanied by a refundable cash deposit in an amount equal to 5% of the offered amount from the person making such offer. Such refundable cash deposits shall be held in an escrow account maintained and administered by the Special Servicer unless the Special Servicer is an offeror. In such case, the refundable cash deposits shall be held in an escrow account maintained and administered by the Certificate Administrator. With respect to any such account to be established and maintained by the Certificate Administrator, the Special Servicer shall provide written notice to the Certificate Administrator that such account is necessary, which notice shall contain the wiring instructions for each bidding party to be used to return such funds to each bidder not selected as the winning bidder. After the Certificate Administrator establishes such escrow account the Special Servicer shall deliver the applicable refundable cash deposits to such account. The Certificate Administrator shall be entitled to rely conclusively on the information in such notice. At the conclusion of the bidding process, the Special Servicer or the Certificate Administrator, as applicable, shall return the deposit of all bidders not selected as the winning bidder. In determining whether any such offer from a Person other than an Interested Person constitutes a fair price for any such Defaulted Mortgage Loan, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative appraisal that it may have obtained pursuant to this Agreement within the prior nine (9) 9 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Defaulted Mortgage Loan, any appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the Defaulted Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Purchase Price for any Defaulted Mortgage Loan shall in all cases be deemed a fair price. Notwithstanding anything contained in this paragraph to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the Trust) designate an independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing or investing in mortgage loans similar to the subject Mortgage Loan, that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for such Mortgage Loan. If the Trustee designates such a third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination. The reasonable costs of all appraisals, inspection reports and broker opinions of value, incurred by any such third party pursuant to this paragraph will be covered by, and will be reimbursable as, a Servicing Advance; provided that, the Trustee shall not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee.
(d) Subject to the other subsections of this Section 9.17, the Special Servicer shall act on behalf of the Trust in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerors, and may retain, fees that approximate the Special Servicer’s actual costs in the preparation and delivery of information pertaining to such sales or exchanging offers without obligation to deposit such amounts into the Collection Account. Any sale of any Defaulted Mortgage Loan shall be for cash. Any sale of any Defaulted Mortgage Loan shall be final and without recourse to the Trustee, the Certificate Administrator or the Trust (except such recourse to the Trust imposed by those representations and warranties typically given in such transactions and any customary closing matters), and if such sale is consummated in accordance with the terms of this Agreement, none of the Special Servicer, the Master Servicer, the Depositor, the Certificate Administrator or the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee.
(e) Subject to the rights of a holder of any related B Note, Serviced Companion Loan or mezzanine loan, under the respective Intercreditor Agreement or mezzanine loan intercreditor agreement, as applicable, to purchase a Mortgage Loan, unless and until a Defaulted Mortgage Loan is sold pursuant to this Section 9.17, the Special Servicer shall continue to service and administer such Mortgage Loan in accordance with the Servicing Standard and this Agreement and shall pursue such other resolutions or recovery strategies including workout, foreclosure or sale of such Mortgage Loan, as is consistent with this Agreement and the Servicing Standard.
(f) The purchase price for any Defaulted Mortgage Loan purchased under this Section 9.17 shall be remitted to the Master Servicer for deposit into the Collection Account, and the Trustee or a Custodian (on the Trustee’s its behalf), upon receipt of a request for release an Officer’s Certificate from the Master Servicer or the Special Servicer, as applicable, to the Custodian and the Trusteeeffect that such deposit has been made, shall release or cause to be released to the purchaser of the Defaulted Mortgage Loan the related Mortgage File, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be necessary to vest in such purchaser ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer (to the extent it has possession of such file) and the Master Servicer (to the extent it has possession of such file) shall deliver the related Servicer Mortgage File to such purchaser.
(g) Notwithstanding any of the foregoing paragraphs of this Section 9.17, but subject to Section 10.3, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines (in consultation with the Trust Advisor, during any Collective Consultation Period and any Senior Consultation Period, and subject to the rights of the Controlling Class Representative set forth in Section 10.3), in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender), and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in its reasonable and good faith judgment, that acceptance of such offer would be in the best interests of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender) (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms offered by the prospective buyer making the lower offer are more favorable).
(h) In no event shall the Trust or the Trustee, the Master Servicer or the Special Servicer on the Trustee’s behalf purchase, or pay or advance costs to purchase, any B Note or Serviced Companion Loan.
(i) Notwithstanding anything to the contrary herein, any purchase of a Defaulted Mortgage Loan pursuant to this Section 9.17 will remain subject to the cure and purchase rights of, in each case if applicable, the holder of any related B Note or Serviced Companion Loan as set forth in the related Intercreditor Agreement and any holder of a related mezzanine loan as set forth in the related mezzanine loan intercreditor agreement. The Special Servicer shall determine the price to be paid in accordance with the terms of the Intercreditor Agreement or the related mezzanine loan intercreditor agreement in connection with any such purchase rights in favor of the holder of the related B Note, Serviced Companion Loan or mezzanine loan, as applicable, and shall provide such notices to the holder of the related B Note, Serviced Companion Loan or mezzanine loan, as applicable, as are required by the Intercreditor Agreement or the related mezzanine loan intercreditor agreement, as the case may be, in connection with each such holders’ purchase rights.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2011-C3), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2011-C3)
Sale of Defaulted Mortgage Loans. (a) Promptly upon a The parties hereto may sell or purchase, or permit the sale or purchase of, any Mortgage Loan becoming a Defaulted Mortgage Loan only on the terms and if the Special Servicer determines in accordance with the Servicing Standard that it would be in the best interests of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender) to attempt to sell such Defaulted Mortgage Loan, the Special Servicer shall use reasonable efforts to solicit offers for such Defaulted Mortgage Loan on behalf of the Certificateholders in such manner as will be reasonably likely to realize a fair price. Subject subject to the provisions of conditions set forth in this Section 9.17 3.18, any applicable Intercreditor Agreement, or as otherwise expressly provided in or contemplated by Sections 2.03(a), 3.29, 6.07 and Section 10.3, the Special Servicer shall accept the first (and, if multiple offers are contemporaneously received, the highest) cash offer received from any Person that constitutes a fair price for such Defaulted Mortgage Loan9.01.
(b) The Subject to Section 6.07 in the case of the First National Bank Center Loan, in the event that any Mortgage Loan (other than a Non-Serviced Mortgage Loan) becomes 60 days delinquent as to any Monthly Payment (or if such Mortgage Loan is a Balloon Mortgage Loan and is delinquent as to its Balloon Payment, only if such Mortgage Loan is also a Specially Serviced Mortgage Loan), then the Special Servicer shall give promptly so notify in writing (an "Option Notice") the Master Servicer and the Trustee, and the Certificate AdministratorTrustee shall promptly notify, in writing, the 17g-5 Information Provider, Holders of the Controlling Class Representative and the applicable Mortgage Loan Seller (during any Subordinate Control Period and any Collective Consultation Periodin the case of the CWCapital Originated Mortgage Loans, CWCapital), the Master Servicerand with respect to a Serviced Whole Loan, the Trust Advisor (other than during any Subordinate Control Period) and the holder of any each related B Note or Serviced Companion Loan not less than five Holder or Serviced B Note Holder. Each of the Majority Certificateholder of the Controlling Class, the Special Servicer and the applicable Mortgage Loan Seller (5or in the case of the CWCapital Originated Mortgage Loans, CWCapital) Business Days’ prior written notice with respect to such Mortgage Loan (in such capacity, together with any assignee, the "Option Holder") shall, in that order, have the right, at its option (the "Option"), to purchase such Mortgage Loan from the Trust Fund at a price equal to the Option Purchase Price upon receipt of its intention such Option Notice (subject, in the case of any Serviced Whole Loan, to sell the related Intercreditor Agreement and, in the case of the First National Bank Center Loan, to Section 6.07 of this Agreement). The Option is exercisable from that date until terminated pursuant to subsection (f) below, and during that period the Option shall be exercisable in any Defaulted Mortgage Loanmonth only during the period from the 10th calendar day of such month through the 25th calendar day, inclusive, of such month. No Interested Person The Trustee on behalf of the Trust Fund shall be obligated to submit sell the Mortgage Loan upon the exercise of the Option (whether exercised by the original Holder thereof or by an offer assignee of such Holder), but shall have no authority to sell the Mortgage Loan other than in connection with the exercise of an Option (or as otherwise expressly provided in or contemplated by Section 2.03(a), this Section 3.18 or Sections 3.29, 6.07, or 9.01). Subject to subsection (e) below, any Option Holder that exercises the Option shall be required to purchase any Defaulted Mortgage Loan, and notwithstanding anything to the contrary contained herein, neither the Trustee, in its individual capacity, nor any of its Affiliates may make an offer for or purchase any Defaulted Mortgage Loan pursuant hereto.
within four (c4) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan for purposes Business Days of this Section 9.17 shall be determined by such exercise. The other party eligible to hold the Special Servicer, if the highest offer is from a Person other than an Interested Person, or by the Trustee (determined either by itself or by retaining an independent third party as Option set forth below), if the highest offer is from an Interested Person; provided that, no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) above may at least one (1) other offer is received from an independent third party. In all cases under this Section 9.17, in determining whether any offer received from an Interested Person represents a fair price for any Defaulted Mortgage Loan, the Trustee, if making such determination itself, shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. The appraiser conducting any such new appraisal shall be an Appraiser selected by the Special Servicer if no Interested Person is making an offer with respect to a Defaulted Mortgage Loan and selected by the Trustee if an Interested Person is so making an offer. The cost of any such narrative appraisal shall be covered by, and shall be reimbursable as, a Servicing Advance. Where any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan, the Special Servicer shall require that all offers be submitted to time notify the Trustee in writing and be accompanied by a refundable cash deposit in an amount equal to 5% of the offered amount from the person making such offer. Such refundable cash deposits shall be held in an escrow account maintained and administered by the Special Servicer unless the Special Servicer is an offeror. In such case, the refundable cash deposits shall be held in an escrow account maintained and administered by the Certificate Administrator. With respect to any such account to be established and maintained by the Certificate Administrator, the Special Servicer shall provide written notice to the Certificate Administrator that such account is necessary, which notice shall contain the wiring instructions for each bidding party to be used to return such funds to each bidder not selected as the winning bidder. After the Certificate Administrator establishes such escrow account the Special Servicer shall deliver the applicable refundable cash deposits to such account. The Certificate Administrator shall be entitled to rely conclusively on the information in such notice. At the conclusion of the bidding process, the Special Servicer or the Certificate Administrator, as applicable, shall return the deposit of all bidders not selected as the winning bidder. In determining whether any such offer from a Person other than an Interested Person constitutes a fair price for any such Defaulted Mortgage Loan, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative appraisal that it may have obtained pursuant to this Agreement within the prior nine (9) months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Defaulted Mortgage Loan, any appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the Defaulted Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Purchase Price for any Defaulted Mortgage Loan shall in all cases be deemed a fair price. Notwithstanding anything contained in this paragraph to the contrary, if the Trustee is required will notify the current Option Holder of such party's desire to determine whether a cash offer by an Interested Person constitutes a fair price, exercise the Trustee may (at its option and at the expense of the Trust) designate an independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing or investing in mortgage loans similar to the subject Mortgage Loan, that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for such Mortgage LoanOption. If the Trustee designates Option Holder (i) does not exercise the Option within the allotted time set forth herein for such a third party Option Holder or (ii) surrenders its right to make such determinationexercise the Option, then the Option Holder's right to exercise the Option shall lapse, and the Trustee shall be entitled promptly notify the other party eligible to rely conclusively upon such third party’s determinationhold the Option of its rights thereunder. The reasonable costs of all appraisals, inspection reports and broker opinions of value, incurred by If any such Option Holder assigns the Option to a third party pursuant to this paragraph will be covered bysubsection (d) below, then it shall so notify the Trustee in writing (and shall include in such notice the relevant contact information for such third party), and will be reimbursable as, a Servicing Advance; provided that, the Trustee shall not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee.
(d) Subject to promptly notify the other subsections party eligible to hold the Option set forth above of this Section 9.17its rights hereunder. Notwithstanding the foregoing paragraph, the Special Servicer shall act on behalf Majority Certificateholder of the Trust in negotiating and taking Controlling Class or its assignee shall have the exclusive right to exercise its Option prior to any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerors, and may retain, fees that approximate the Special Servicer’s actual costs in the preparation and delivery of information pertaining to such sales or exchanging offers without obligation to deposit such amounts into the Collection Account. Any sale of any Defaulted Mortgage Loan shall be for cash. Any sale of any Defaulted Mortgage Loan shall be final and without recourse to the Trustee, the Certificate Administrator or the Trust (except such recourse to the Trust imposed by those representations and warranties typically given in such transactions and any customary closing matters), and if such sale is consummated in accordance with the terms of this Agreement, none exercise of the Special Servicer, the Master Servicer, the Depositor, the Certificate Administrator or the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted Option by the Special Servicer or the Trustee.
(e) Subject to the rights of a holder of any related B Noteits assignee; provided, Serviced Companion Loan or mezzanine loanhowever, under the respective Intercreditor Agreement or mezzanine loan intercreditor agreement, as applicable, to purchase a Mortgage Loan, unless and until a Defaulted Mortgage Loan is sold pursuant to this Section 9.17, the Special Servicer shall continue to service and administer such Mortgage Loan in accordance with the Servicing Standard and this Agreement and shall pursue such other resolutions or recovery strategies including workout, foreclosure or sale of such Mortgage Loan, as is consistent with this Agreement and the Servicing Standard.
(f) The purchase price for any Defaulted Mortgage Loan purchased under this Section 9.17 shall be remitted to the Master Servicer for deposit into the Collection Account, and the Custodian (on the Trustee’s behalf), upon receipt of a request for release from the Master Servicer or the Special Servicer, as applicable, to the Custodian and the Trustee, shall release or cause to be released to the purchaser of the Defaulted Mortgage Loan the related Mortgage File, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be necessary to vest in such purchaser ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer (to the extent it has possession of such file) and the Master Servicer (to the extent it has possession of such file) shall deliver the related Servicer Mortgage File to such purchaser.
(g) Notwithstanding any of the foregoing paragraphs of this Section 9.17, but subject to Section 10.3, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines (in consultation with Option is not exercised by the Trust Advisor, during any Collective Consultation Period and any Senior Consultation Period, and subject to the rights Majority Certificateholder of the Controlling Class Representative set forth in Section 10.3), in accordance with the Servicing Standard, that rejection of such offer would be in the best interests or its assignee within 60 Business Days of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender)Option Notice then the Special Servicer or its assignee shall have the exclusive right to exercise its Purchase Option, and the Special Servicer or its respective assignee may accept a lower cash offer (from exercise such Option at any Person other than itself or an Affiliate) if it determines, in its reasonable and good faith judgment, that acceptance time during the 30 Business Day period immediately following the earlier of the expiration of such offer would be in initial 60-day period or receipt by the best interests Special Servicer of written notice from the Majority Certificateholder of the Certificateholders (as a collective whole as if Controlling Class that it shall not exercise its Option during such Certificateholders constituted a single lender) (for exampleinitial 60-day period, provided, however, if the prospective buyer making the lower offer Option is more likely to perform its obligations or the terms offered not exercised by the prospective buyer making the lower offer are more favorable).
(h) In no event shall the Trust or the Trustee, the Master Servicer or the Special Servicer on or its assignee within 30 Business Days, the Trustee’s behalf purchase, or pay or advance costs to purchase, any B Note or Serviced Companion Loan.
(i) Notwithstanding anything to the contrary herein, any purchase of a Defaulted applicable Mortgage Loan Seller (or in the case of the CWCapital Originated Mortgage Loans, CWCapital) or its assignee shall have the exclusive right to exercise its Purchase Option for a period of 30 Business Days immediately following such prior 30 Business Day period. Following the expiration of such 30 Business Day period, the Majority Certificateholder of the Controlling Class shall again have the exclusive right to exercise or assign the Purchase Option. For the avoidance of doubt, it is understood that the recalculation of the Option Purchase Price pursuant to this Section 9.17 will remain subject subsection 3.18(c) does not extend or reset the time within which any Option Holder has the right to the cure and purchase rights of, in each case if applicable, the holder of any related B Note or Serviced Companion Loan as set forth in the related Intercreditor Agreement and any holder of a related mezzanine loan as set forth in the related mezzanine loan intercreditor agreement. The Special Servicer shall determine the price to be paid in accordance with the terms of the Intercreditor Agreement or the related mezzanine loan intercreditor agreement in connection with any such purchase rights in favor of the holder of the related B Note, Serviced Companion Loan or mezzanine loan, as applicable, and shall provide such notices to the holder of the related B Note, Serviced Companion Loan or mezzanine loan, as applicable, as are required by the Intercreditor Agreement or the related mezzanine loan intercreditor agreement, as the case may be, in connection with each such holders’ purchase rightsexercise its Option.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (GMAC Commercial Mortgage Securities, Inc. Series 2006-C1 Trust)
Sale of Defaulted Mortgage Loans. (a) Promptly upon A Mortgage Loan may be sold or purchased only on the terms and subject to the conditions set forth in this Section 3.19 or as otherwise expressly provided in or contemplated by Section 2.03 and Section 9.01, or, in the case of a Mortgage Loan becoming with related subordinate debt or a Defaulted Mortgage Loan and if related mezzanine loan, pursuant to the Special Servicer determines in accordance with the Servicing Standard that it would be in the best interests terms of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender) to attempt to sell such Defaulted Mortgage Loan, the Special Servicer shall use reasonable efforts to solicit offers for such Defaulted Mortgage Loan on behalf of the Certificateholders in such manner as will be reasonably likely to realize a fair price. Subject to the provisions of this Section 9.17 and Section 10.3, the Special Servicer shall accept the first (and, if multiple offers are contemporaneously received, the highest) cash offer received from any Person that constitutes a fair price for such Defaulted Mortgage Loanrelated intercreditor agreement.
(b) The Special Servicer shall give the Trustee, the Certificate Administrator, the 17g-5 Information Provider, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Master Servicer, the Trust Advisor (other than during any Subordinate Control Period) and the holder of any related B Note or Serviced Companion Loan not less than five (5) Business Days’ prior written notice of its intention to sell any Defaulted Mortgage Loan. No Interested Person shall be obligated to submit an offer to purchase any Defaulted Mortgage Loan, and notwithstanding anything to the contrary contained herein, neither the Trustee, in its individual capacity, nor any of its Affiliates may make an offer for or purchase any Defaulted Within 60 days after a Mortgage Loan pursuant hereto.
(c) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan for purposes of this Section 9.17 shall be determined by the Special Servicer, if the highest offer is from a Person other than an Interested Person, or by the Trustee (determined either by itself or by retaining an independent third party as set forth below), if the highest offer is from an Interested Person; provided that, no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least one (1) other offer is received from an independent third party. In all cases under this Section 9.17, in determining whether any offer received from an Interested Person represents a fair price for any Defaulted Mortgage Loan, the Trustee, if making such determination itself, shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. The appraiser conducting any such new appraisal shall be an Appraiser selected by the Special Servicer if no Interested Person is making an offer with respect to a Defaulted Mortgage Loan and selected by the Trustee if an Interested Person is so making an offer. The cost of any such narrative appraisal shall be covered by, and shall be reimbursable as, a Servicing Advance. Where any Interested Person is among those making an offer with respect to becomes a Defaulted Mortgage Loan, the Special Servicer shall require determine the fair value of such Mortgage Loan in accordance with the Servicing Standard; provided, however, that all offers be submitted to the Trustee in writing and be accompanied by a refundable cash deposit in an amount equal to 5% of the offered amount from the person making such offer. Such refundable cash deposits determination shall be held in an escrow made without taking into account maintained and administered by any effect the Special Servicer unless restrictions on the sale of such Mortgage Loan contained herein may have on the value of such Defaulted Mortgage Loan; provided, further, that if the Special Servicer is an offeror. In such case, then in the refundable cash deposits shall be held in an escrow account maintained and administered by the Certificate Administrator. With process of obtaining a new Appraisal with respect to any such account to be established and maintained by the Certificate Administratorrelated Mortgaged Property, the Special Servicer shall provide written notice to the Certificate Administrator that make its fair value determination as soon as reasonably practicable (but in any event within thirty (30) days) after its receipt of such account is necessary, which notice shall contain the wiring instructions for each bidding party to be used to return such funds to each bidder not selected as the winning biddernew Appraisal. After the Certificate Administrator establishes such escrow account the The Special Servicer shall deliver recalculate, from time to time, but not less often than every 90 days, its determination of the applicable refundable cash deposits to such accountfair value of a Defaulted Mortgage Loan based upon changed circumstances, new information or otherwise, in accordance with the Servicing Standard. The Certificate Administrator Special Servicer shall be entitled to rely conclusively on notify the information in such notice. At the conclusion of the bidding processTrustee, the Special Servicer or Servicer, each Rating Agency, and the Certificate AdministratorDirecting Certificateholder, as applicable, shall return the deposit of all bidders not selected as the winning bidderpromptly upon its fair value determination and any adjustment thereto. In determining whether the fair value of any such offer from a Person other than an Interested Person constitutes a fair price for any such Defaulted Mortgage Loan, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative appraisal that it may have obtained pursuant to this Agreement within the prior nine (9) months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Defaulted Mortgage Loan, any appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any the delinquency on the Defaulted such Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and Property, the state of the local economyeconomy in the area where the Mortgaged Property is located, and the time and expense associated with a purchaser's foreclosing on the related Mortgaged Property. In addition, the Special Servicer shall refer to all other relevant information obtained by it or otherwise contained in the Mortgage File; provided that, the Special Servicer shall take account of any change in circumstances regarding the related Mortgaged Property known to the Special Servicer that has occurred subsequent to, and that would, in the Special Servicer's reasonable judgment, materially affect the value of the related Mortgaged Property reflected in the most recent related Appraisal. Furthermore, the Special Servicer may consider available objective third party information obtained from generally available sources, as well as information obtained from vendors providing real estate services to the Special Servicer, concerning the market for distressed real estate loans and the real estate market for the subject property type in the area where the related Mortgaged Property is located. The Purchase Price for any Defaulted Mortgage Loan shall in all cases be deemed a fair price. Notwithstanding anything contained in this paragraph Special Servicer may, to the contraryextent it is reasonable to do so in accordance with the Servicing Standard, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense conclusively rely on any opinions or reports of the Trust) designate an independent third party expert qualified Independent experts in real estate or commercial mortgage loan matters with at least five (5) years’ ' experience in valuing or investing in mortgage loans similar to the subject Mortgage Specially Serviced Loan, that has been selected with reasonable care by the Trustee Special Servicer, in making such determination. All reasonable costs and expenses incurred by the Special Servicer pursuant to determine this Section 3.19(b) shall constitute, and be reimbursable as, Servicing Advances. The other parties to this Agreement shall cooperate with all reasonable requests for information made by the Special Servicer in order to allow the Special Servicer to perform its duties pursuant to this Section 3.19(b).
(c) Subject to the terms set forth in Section 2.03, in the event a Mortgage Loan becomes a Defaulted Mortgage Loan, each of the Directing Certificateholder and the Special Servicer (but only if the Directing Certificateholder or the Special Servicer, as applicable, is not an affiliate of the related Mortgage Loan Seller) (in that order) (subject, in the case of any Mortgage Loan as to which there is related subordinate or mezzanine debt, to any rights to purchase such cash offer constitutes Defaulted Mortgage Loan set forth in the related intercreditor agreement) shall have an assignable option (a "Purchase Option") to purchase such Defaulted Mortgage Loan from the Trust Fund at a price (the "Option Price") equal to (i) the Purchase Price, if the Special Servicer has not yet determined the fair price value of the Defaulted Mortgage Loan, or (ii) the fair value of the Defaulted Mortgage Loan as determined by the Special Servicer in the manner described in Section 3.19(b) and in accordance with the Servicing Standard, if the Special Servicer has made such fair value determination. Any holder of a Purchase Option may sell, transfer, assign or otherwise convey its Purchase Option with respect to any Defaulted Mortgage Loan to any party at any time after the related Mortgage Loan becomes a Defaulted Mortgage Loan. The transferor of any Purchase Option shall notify the Trustee, the Special Servicer and the Servicer of such transfer and such notice shall include the transferee's name, address, telephone number, facsimile number and appropriate contact person(s) and shall be acknowledged in writing by the transferee. If any holder of the Purchase Option sells, transfers or otherwise conveys the Purchase Option for no material consideration more than 90 days after the Option Price has been determined, then the transferee shall pay a Liquidation Fee in connection with the exercise of the Purchase Option. Notwithstanding the foregoing, the Directing Certificateholder shall have the right to exercise its Purchase Option prior to any exercise of the Purchase Option by the Special Servicer; provided, however, if the Purchase Option is not exercised by the Directing Certificateholder or any assignee thereof within 60 days of the initial determination of the fair value of such Mortgage Loan, then the Special Servicer shall have the right to exercise its Purchase Option prior to any exercise by the Directing Certificateholder and the Special Servicer or its assignee may exercise such Purchase Option at any time during the fifteen day period immediately following the expiration of such 60-day period. Following the expiration of each such fifteen day period, the Directing Certificateholder shall again have the exclusive right to exercise the Purchase Option. If not exercised earlier, the Purchase Option with respect to any Defaulted Mortgage Loan will automatically terminate (i) once the related Defaulted Mortgage Loan is no longer a Defaulted Mortgage Loan; provided, however, that if such Mortgage Loan subsequently becomes a Defaulted Mortgage Loan, the related Purchase Option shall again be exercisable after a new fair value calculation is made pursuant to clause (b) above, (ii) upon the acquisition, by or on behalf of the Trust Fund, of title to the related Mortgaged Property through foreclosure or deed in lieu of foreclosure, (iii) the modification or pay-off, in full or at a discount, of such Defaulted Mortgage Loan in connection with a workout or (iv) upon a repurchase of a Defaulted Mortgage Loan by the applicable Mortgage Loan Seller due to the Mortgage Loan Seller's breach of a representation with respect to such Defaulted Mortgage Loan.
(d) Upon receipt of notice from the Special Servicer indicating that a Mortgage Loan has become a Defaulted Mortgage Loan, the holder (whether the original grantee of such option or any subsequent transferee) of the Purchase Option may exercise the Purchase Option by providing the Servicer, the Special Servicer and the Trustee designates such at least five days prior written notice thereof (the "Purchase Option Notice"), which notice shall identify the Person that, on its own or through an Affiliate, will acquire the related Mortgage Loan upon closing and shall specify a third party cash exercise price at least equal to make the Option Price. The Purchase Option Notice shall be delivered in the manner specified in Section 3.19(c). The exercise of any Purchase Option pursuant to this clause (d) shall be irrevocable.
(e) If the Special Servicer or, if the Directing Certificateholder is an affiliate of the Special Servicer, the Directing Certificateholder or any of their respective Affiliates is identified in the Purchase Option Notice as the Person expected to acquire the related Mortgage Loan, the Servicer shall determine (or, if the Special Servicer has made such determination, shall confirm) the Trustee fair value and must retain an appraiser or other Independent third party (either of whom must be an MAI) (at the expense of the Trust) that the Servicer reasonably believes has the requisite experience to assist it to determine the fair value (such person, the "Third Party Appraiser") and obtain from such third party a determination as soon as reasonably practicable after the Servicer has received the written notice, of whether the Option Price represents fair value for the Defaulted Mortgage Loan; provided that, if the Servicer requests the Third Party Appraiser to perform a new Appraisal with respect to the related Mortgaged Property, then the Third Party Appraiser retained by the Servicer shall make its fair value determination with respect to such Mortgage Loan as soon as reasonably practicable (but in any event within forty-five (45) days) after the completion of such new Appraisal. Such fair value determination made by the Servicer shall be entitled made in accordance with the Servicing Standard; provided that, absent manifest error, the Servicer may conclusively rely on the opinion of the Third Party Appraiser in making such determination; provided that, in choosing such Third Party Appraiser the Servicer shall use reasonable care in accordance with the Servicing Standard. In determining the fair value of any Defaulted Mortgage Loan, the Third Party Appraiser retained by the Servicer shall take into account, among other factors, the period and amount of the delinquency on such Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property, the state of the local economy in the area where the Mortgaged Property is located, and the time and expense associated with a purchaser's foreclosing on the related Mortgaged Property. In addition, the Third Party Appraiser retained by the Servicer shall refer to rely conclusively upon such third party’s determinationthe Servicing Standard and all other relevant information delivered to it by the Servicer or otherwise contained in the Mortgage File; provided that, the Third Party Appraiser retained by the Servicer shall take account of any known change in circumstances regarding the related Mortgaged Property that has occurred subsequent to, and that would, in its reasonable judgment, materially affect the value of the related Mortgaged Property. Furthermore, the Third Party Appraiser retained by the Servicer shall consider all available objective third-party information obtained from generally available sources, concerning the market for distressed real estate loans and the real estate market for the subject property type in the area where the related Mortgaged Property is located. The reasonable Third Party Appraiser retained by the Servicer may rely on the opinion and reports of other parties in making such determination and on the most current Appraisal obtained for the related Mortgaged Property pursuant to this Agreement. The costs of the Third Party Appraiser and all appraisals, inspection reports and broker opinions of value, reasonably incurred by any such third party Third Party Appraiser or otherwise incurred pursuant to this paragraph will subsection shall be covered byadvanced by the Servicer and shall constitute, and will be reimbursable as, Servicing Advances (or if such advance is deemed to be a Servicing Advance; provided that, Nonrecoverable Advance such costs shall be reimbursable as Trust Fund expenses from the Trustee Certificate Account pursuant to Section 3.05(a). The other parties to this Agreement shall not engage a third party expert whose fees exceed a commercially cooperate with all reasonable amount as determined by the Trusteerequests for information.
(df) Subject Unless and until the Purchase Option with respect to a Defaulted Mortgage Loan is exercised or the other subsections of this Section 9.17Defaulted Mortgage Loan is purchased by a subordinate or mezzanine lender, the Special Servicer shall act on behalf of pursue such other resolution strategies available hereunder with respect to such Defaulted Mortgage Loan, including, without limitation, workout and foreclosure, as the Trust in negotiating and taking any Special Servicer may deem appropriate consistent with the Servicing Standard; provided, however, the Special Servicer will not be permitted to sell the Defaulted Mortgage Loan other action necessary or appropriate than in connection with the sale exercise of any Defaulted Mortgage Loan, and the collection of all amounts payable in connection therewithrelated Purchase Option. In connection therewithwith the foregoing, the Special Servicer may charge prospective offerorsbidders, and may retain, fees that approximate the Special Servicer’s 's actual costs in the preparation and delivery of information pertaining to such sales or exchanging offers evaluating bids without obligation to deposit such amounts into the Collection Account. Any sale of any Defaulted Mortgage Loan shall be for cash. Any sale of any Defaulted Mortgage Loan shall be final and without recourse to the Trustee, the Certificate Administrator Account or the Trust (except such recourse to the Trust imposed by those representations and warranties typically given in such transactions and any customary closing matters), and if such sale is consummated in accordance with the terms of this Agreement, none of the Special Servicer, the Master Servicer, the Depositor, the Certificate Administrator or the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the TrusteeREO Accounts.
(e) Subject to the rights of a holder of any related B Note, Serviced Companion Loan or mezzanine loan, under the respective Intercreditor Agreement or mezzanine loan intercreditor agreement, as applicable, to purchase a Mortgage Loan, unless and until a Defaulted Mortgage Loan is sold pursuant to this Section 9.17, the Special Servicer shall continue to service and administer such Mortgage Loan in accordance with the Servicing Standard and this Agreement and shall pursue such other resolutions or recovery strategies including workout, foreclosure or sale of such Mortgage Loan, as is consistent with this Agreement and the Servicing Standard.
(f) The purchase price for any Defaulted Mortgage Loan purchased under this Section 9.17 shall be remitted to the Master Servicer for deposit into the Collection Account, and the Custodian (on the Trustee’s behalf), upon receipt of a request for release from the Master Servicer or the Special Servicer, as applicable, to the Custodian and the Trustee, shall release or cause to be released to the purchaser of the Defaulted Mortgage Loan the related Mortgage File, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be necessary to vest in such purchaser ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer (to the extent it has possession of such file) and the Master Servicer (to the extent it has possession of such file) shall deliver the related Servicer Mortgage File to such purchaser.
(g) Notwithstanding any of the foregoing paragraphs of this Section 9.17, but subject to Section 10.3, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines (in consultation with the Trust Advisor, during any Collective Consultation Period and any Senior Consultation Period, and subject to the rights of the Controlling Class Representative set forth in Section 10.3), in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender), and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in its reasonable and good faith judgment, that acceptance of such offer would be in the best interests of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender) (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms offered by the prospective buyer making the lower offer are more favorable).
(h) In no event shall the Trust or the Trustee, the Master Servicer or the Special Servicer on the Trustee’s behalf purchase, or pay or advance costs to purchase, any B Note or Serviced Companion Loan.
(i) Notwithstanding anything to the contrary herein, any purchase of a Defaulted Mortgage Loan pursuant to this Section 9.17 will remain subject to the cure and purchase rights of, in each case if applicable, the holder of any related B Note or Serviced Companion Loan as set forth in the related Intercreditor Agreement and any holder of a related mezzanine loan as set forth in the related mezzanine loan intercreditor agreement. The Special Servicer shall determine the price to be paid in accordance with the terms of the Intercreditor Agreement or the related mezzanine loan intercreditor agreement in connection with any such purchase rights in favor of the holder of the related B Note, Serviced Companion Loan or mezzanine loan, as applicable, and shall provide such notices to the holder of the related B Note, Serviced Companion Loan or mezzanine loan, as applicable, as are required by the Intercreditor Agreement or the related mezzanine loan intercreditor agreement, as the case may be, in connection with each such holders’ purchase rights.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ge Commercial Mortgage Corp)
Sale of Defaulted Mortgage Loans. (a) Promptly upon a The parties hereto may sell or purchase, or permit the sale or purchase of, any Mortgage Loan becoming a Defaulted (other than the Mall at Millenia Mortgage Loan and if the Special Servicer determines Geneva Commons Mortgage Loan) only on the terms and subject to the conditions set forth in accordance this Section 3.18, any applicable Serviced Whole Loan Intercreditor Agreement, or with respect to the Servicing Standard that it would be in 000 Xxxxx Xxxxxx Whole Loan, subject to the best interests purchase rights of the Certificateholders (000 Xxxxx Xxxxxx Mezzanine Lender under the 000 Xxxxx Xxxxxx Mezzanine Intercreditor Agreement, or as a collective whole as if such Certificateholders constituted a single lenderotherwise expressly provided in or contemplated by Sections 2.03(a), 3.30(a) to attempt to sell such Defaulted Mortgage Loan, the Special Servicer shall use reasonable efforts to solicit offers for such Defaulted Mortgage Loan on behalf of the Certificateholders in such manner as will be reasonably likely to realize a fair price. Subject to the provisions of this Section 9.17 and Section 10.3, the Special Servicer shall accept the first (and, if multiple offers are contemporaneously received, the highest) cash offer received from any Person that constitutes a fair price for such Defaulted Mortgage Loan9.01.
(b) The In the event that any Mortgage Loan (other than the Mall at Millenia Mortgage Loan, the Xxxxx Fargo Tower Mortgage Loan and the Geneva Commons Mortgage Loan and except as provided in sub-section (k) below, the AFR/Bank of America Portfolio B Note) becomes 60 days delinquent as to any Monthly Payment (or if such Mortgage Loan is a Balloon Mortgage Loan and is delinquent as to its Balloon Payment, only if such Mortgage Loan is also a Specially Serviced Mortgage Loan), and with respect to the Xxxxx Fargo Tower Loan, upon a receipt by the Trustee, Master Servicer or Special Servicer of notice that the Xxxxx Fargo Tower Loan is a Specially Serviced Mortgage Loan (as defined in the Greenwich Commercial Mortgage Trust 2003-C2 Pooling and Servicing Agreement) the Special Servicer shall give promptly so notify in writing (an "Option Notice") the Master Servicer and the Trustee, and the Certificate AdministratorTrustee shall promptly notify, in writing, the 17g-5 Information ProviderHolders of the Controlling Class, with respect to the AFR/Bank of America Portfolio Loan, the Class S-AFR Controlling Class Directing Holder and with respect to any Serviced Whole Loan, the related Serviced Companion Loan Holders and with respect to the 000 Xxxxx Xxxxxx Whole Loan, the 000 Xxxxx Xxxxxx Mezzanine Lender. Each of the Majority Certificateholder of the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period)or, with respect to the AFR/Bank of America Portfolio Loan, the Master Servicer, the Trust Advisor Class S-AFR Controlling Class Directing Holder (other than during any Subordinate so long as no AFR/Bank of America Portfolio Change of Control PeriodEvent has occurred and is continuing) and the holder applicable Mortgage Loan Seller with respect to such Mortgage Loan (in such capacity, together with any assignee, the "Option Holder") shall, in that order, have the right, at its option (the "Option"), to purchase such Mortgage Loan from the Trust Fund at a price equal to the Option Purchase Price (as defined in clause (c) below) upon receipt of such Option Notice and with respect to the 000 Xxxxx Xxxxxx Whole Loan, subject to the purchase rights of the 000 Xxxxx Xxxxxx Mezzanine Lender, as set forth in subsection (n) below and in the 609 Mezzanine Intercreditor Agreement. The Option is exercisable from that date until terminated pursuant to clause (f) below, and during that period the Option shall be exercisable in any related B Note or Serviced Companion Loan not less than five (5) Business Days’ prior written notice month only during the period from the 10th calendar day of its intention to sell any Defaulted Mortgage Loansuch month through the 25th calendar day, inclusive, of such month. No Interested Person The Trustee on behalf of the Trust Fund shall be obligated to submit sell the Mortgage Loan upon the exercise of the Option (whether exercised by the original Holder thereof or by an offer assignee of such Holder), but shall have no authority to sell the Mortgage Loan other than in connection with the exercise of an Option (or as otherwise expressly provided in or contemplated by Section 2.03(a) or Section 9.01). Subject to subsection (l) below, any Option Holder that exercises the Option shall be required to purchase any Defaulted Mortgage Loan, and notwithstanding anything to the contrary contained herein, neither the Trustee, in its individual capacity, nor any of its Affiliates may make an offer for or purchase any Defaulted Mortgage Loan pursuant hereto.
(c) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan for purposes within four Business Days of this Section 9.17 shall be determined by such exercise. The other party eligible to hold the Special Servicer, if the highest offer is from a Person other than an Interested Person, or by the Trustee (determined either by itself or by retaining an independent third party as Option set forth below), if the highest offer is from an Interested Person; provided that, no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) above may at least one (1) other offer is received from an independent third party. In all cases under this Section 9.17, in determining whether any offer received from an Interested Person represents a fair price for any Defaulted Mortgage Loan, the Trustee, if making such determination itself, shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. The appraiser conducting any such new appraisal shall be an Appraiser selected by the Special Servicer if no Interested Person is making an offer with respect to a Defaulted Mortgage Loan and selected by the Trustee if an Interested Person is so making an offer. The cost of any such narrative appraisal shall be covered by, and shall be reimbursable as, a Servicing Advance. Where any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan, the Special Servicer shall require that all offers be submitted to time notify the Trustee in writing and be accompanied by a refundable cash deposit in an amount equal to 5% of the offered amount from the person making such offer. Such refundable cash deposits shall be held in an escrow account maintained and administered by the Special Servicer unless the Special Servicer is an offeror. In such case, the refundable cash deposits shall be held in an escrow account maintained and administered by the Certificate Administrator. With respect to any such account to be established and maintained by the Certificate Administrator, the Special Servicer shall provide written notice to the Certificate Administrator that such account is necessary, which notice shall contain the wiring instructions for each bidding party to be used to return such funds to each bidder not selected as the winning bidder. After the Certificate Administrator establishes such escrow account the Special Servicer shall deliver the applicable refundable cash deposits to such account. The Certificate Administrator shall be entitled to rely conclusively on the information in such notice. At the conclusion of the bidding process, the Special Servicer or the Certificate Administrator, as applicable, shall return the deposit of all bidders not selected as the winning bidder. In determining whether any such offer from a Person other than an Interested Person constitutes a fair price for any such Defaulted Mortgage Loan, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative appraisal that it may have obtained pursuant to this Agreement within the prior nine (9) months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Defaulted Mortgage Loan, any appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the Defaulted Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Purchase Price for any Defaulted Mortgage Loan shall in all cases be deemed a fair price. Notwithstanding anything contained in this paragraph to the contrary, if the Trustee is required will notify the current Option Holder of such party's desire to determine whether a cash offer by an Interested Person constitutes a fair price, exercise the Trustee may (at its option and at the expense of the Trust) designate an independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing or investing in mortgage loans similar to the subject Mortgage Loan, that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for such Mortgage LoanOption. If the Trustee designates such a third party Option Holder neither (i) exercises the Option nor (ii) surrenders its right to make such determinationexercise the Option within 30 Business Days of its receipt of that notice, then the Option Holder's right to exercise the Option shall lapse, and the Trustee shall be entitled promptly notify the other party eligible to rely conclusively upon such third party’s determinationhold the Option of its rights thereunder. The reasonable costs of all appraisals, inspection reports and broker opinions of value, incurred by If any such Option Holder assigns the Option to a third party pursuant to this paragraph will be covered byclause (d) below, then it shall so notify the Trustee in writing (and shall include in such notice the relevant contact information for such third party), and will be reimbursable as, a Servicing Advance; provided that, the Trustee shall not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee.
(d) Subject to promptly notify the other subsections party eligible to hold the Option set forth above of this Section 9.17its rights hereunder. Notwithstanding the foregoing paragraph, the Special Servicer shall act on behalf Majority Certificateholder of the Trust in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage LoanControlling Class or, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerors, and may retain, fees that approximate the Special Servicer’s actual costs in the preparation and delivery of information pertaining to such sales or exchanging offers without obligation to deposit such amounts into the Collection Account. Any sale of any Defaulted Mortgage Loan shall be for cash. Any sale of any Defaulted Mortgage Loan shall be final and without recourse to the Trustee, the Certificate Administrator or the Trust (except such recourse to the Trust imposed by those representations and warranties typically given in such transactions and any customary closing matters), and if such sale is consummated in accordance with the terms of this Agreement, none of the Special Servicer, the Master Servicer, the Depositor, the Certificate Administrator or the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted AFR/Bank of America Portfolio Loan, the Class S-AFR Controlling Class Directing Holder or its respective assignee shall have the exclusive right to exercise its Option prior to any exercise of the Option by the Special Servicer or the Trustee.
(e) Subject to the rights of a holder of any related B Note, Serviced Companion Loan or mezzanine loan, under the respective Intercreditor Agreement or mezzanine loan intercreditor agreement, as applicable, to purchase a Mortgage Loan, unless and until a Defaulted applicable Mortgage Loan is sold pursuant to this Section 9.17Seller or its assignee; provided, the Special Servicer shall continue to service and administer such Mortgage Loan in accordance with the Servicing Standard and this Agreement and shall pursue such other resolutions or recovery strategies including workouthowever, foreclosure or sale of such Mortgage Loan, as is consistent with this Agreement and the Servicing Standard.
(f) The purchase price for any Defaulted Mortgage Loan purchased under this Section 9.17 shall be remitted to the Master Servicer for deposit into the Collection Account, and the Custodian (on the Trustee’s behalf), upon receipt of a request for release from the Master Servicer or the Special Servicer, as applicable, to the Custodian and the Trustee, shall release or cause to be released to the purchaser of the Defaulted Mortgage Loan the related Mortgage File, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be necessary to vest in such purchaser ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer (to the extent it has possession of such file) and the Master Servicer (to the extent it has possession of such file) shall deliver the related Servicer Mortgage File to such purchaser.
(g) Notwithstanding any of the foregoing paragraphs of this Section 9.17, but subject to Section 10.3, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines (in consultation with Option is not exercised by the Trust Advisor, during any Collective Consultation Period and any Senior Consultation Period, and subject to the rights Majority Certificateholder of the Controlling Class Representative set forth in Section 10.3)or, in accordance with respect to the Servicing StandardAFR/Bank of America Portfolio Loan, that rejection the Class S-AFR Controlling Class Directing Holder or any assignee thereof (provided no AFR/Bank of such offer would be in the best interests America Portfolio Change of Control Event exists) within 30 Business Days of the Certificateholders (as Option Notice, then with respect to the AFR/Bank of America Portfolio Loan, the Majority Certificateholder of the Controlling Class or any assignee thereof shall have the exclusive right to exercise the Purchase Option for a collective whole as if such Certificateholders constituted a single lender)30 Business Day period, and, then the applicable Mortgage Loan Seller or its assignee shall have the exclusive right to exercise its Purchase Option, and the Special Servicer applicable Mortgage Loan Seller or its respective assignee may accept a lower cash offer (from exercise such Option at any Person other than itself or an Affiliate) if it determines, in its reasonable and good faith judgment, that acceptance time during the 30 Business Day period immediately following the expiration of such offer would be in initial 30 day period. Following the best interests expiration of such 30 Business Day period, the Majority Certificateholder of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender) (for exampleControlling Class or, if with respect to the prospective buyer making the lower offer is more likely to perform its obligations or the terms offered by the prospective buyer making the lower offer are more favorable).
(h) In no event shall the Trust or the TrusteeAFR/Bank of America Portfolio Loan, the Master Servicer or Class S AFR Controlling Class Directing Holder (provided no AFR/Bank of America Portfolio Change of Control Event exists) shall again have the Special Servicer on exclusive right to exercise the Trustee’s behalf purchase, or pay or advance costs to purchase, any B Note or Serviced Companion LoanPurchase Option.
(i) Notwithstanding anything to the contrary herein, any purchase of a Defaulted Mortgage Loan pursuant to this Section 9.17 will remain subject to the cure and purchase rights of, in each case if applicable, the holder of any related B Note or Serviced Companion Loan as set forth in the related Intercreditor Agreement and any holder of a related mezzanine loan as set forth in the related mezzanine loan intercreditor agreement. The Special Servicer shall determine the price to be paid in accordance with the terms of the Intercreditor Agreement or the related mezzanine loan intercreditor agreement in connection with any such purchase rights in favor of the holder of the related B Note, Serviced Companion Loan or mezzanine loan, as applicable, and shall provide such notices to the holder of the related B Note, Serviced Companion Loan or mezzanine loan, as applicable, as are required by the Intercreditor Agreement or the related mezzanine loan intercreditor agreement, as the case may be, in connection with each such holders’ purchase rights.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
