Common use of Sale of Mortgage Loans and REO Properties Clause in Contracts

Sale of Mortgage Loans and REO Properties. (a) The parties hereto may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 and 9.01. (b) [If the Special Servicer has determined, in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standard, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling Class. The Majority Certificateholder of the Controlling Class may at its option purchase from the Trust, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof). (c) If the Majority Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option purchase such Mortgage Loan from the Trust, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the Trust. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the Trust, the Special Servicer shall accept the highest cash offer received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 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. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc), Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc), Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc)

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Sale of Mortgage Loans and REO Properties. (a) The parties hereto may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 and 9.01. (b) [If the Special Servicer has determined, in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standard, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling Class. The Majority Certificateholder of the Controlling Class may at its option purchase from the Trust, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof). (c) If the Majority Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option purchase such Mortgage Loan from the Trust, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the Trust. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the Trust, the Special Servicer shall accept the highest cash offer received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from fzom Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 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. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Nationslink Funding Corp), Pooling and Servicing Agreement (Nationslink Funding Corp), Pooling and Servicing Agreement (Nationslink Funding Corp)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.02, 2.03 and 9.01. (b) [RESERVED] (c) If the Special Servicer has determined, in its reasonable good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling Class. The Majority Certificateholder of the Controlling Class may at its option purchase from the Trust, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof). (c) If the Majority Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] above, either Either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option option, within 30 days after receipt of such notice, purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Collection Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustTrust Fund. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 10 days. Unless the Special Servicer determines that acceptance of any offer bid would not be in the best economic interests of the TrustTrust Fund, the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer bid determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard3.09. The Special Servicer shall use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneously, highest) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer bid is from an Interested Person, by the Trustee. In determining whether any offer bid received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall be entitled to rely on the most recent Appraisal or updated Appraisal in the related Servicing File conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by new Appraisal, or if the most recent Appraisal is not more than 12 months old but there has been a Qualified Appraisermaterial change in such Mortgaged Property or REO Property during the prior 12 months, retained by the Special Servicer. Such appraiser shall on an updated Appraisal, in any case to be selected obtained by the Special Servicer if neither (the Special Servicer nor cost of which shall constitute a Servicing Advance). On making any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and such determination of fair price based on the Appraisal, the Trustee shall be selected by entitled to retain and may rely on the Trustee if the Special Servicer or an Affiliate thereof is making such an offerdeterminations of professional consultants. The cost of any such narrative appraisal consultants shall be advanced by the Master Servicer, at the direction an expense of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse Trust Fund reimbursable to the Trustee or from the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 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. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes funds on deposit in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).Collection

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Criimi Mae CMBS Corp), Pooling and Servicing Agreement (Criimi Mae CMBS Corp)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only (i) on the terms and subject to the conditions set forth in this Section 3.18 or 3.19, (ii) as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.019.01 of this Agreement, (iii) in the case of the Loan Pairs, as expressly contemplated in the related Co-Lender Agreement, and (iv) in the case of a Mortgage Loan with a related mezzanine loan, in connection with a Loan default as set forth in the related intercreditor agreement. (b) [If Within five Business Days after any Serviced Mortgage Loan has become a Specially Serviced Mortgage Loan, the Special Servicer has determined, in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject shall give notice of such event to each Holder of a foreclosure sale or similar proceedingCertificate of the Controlling Class, and that to each holder of the sale of related Companion Loans (if such Mortgage Loan is a Trust Mortgage Loan) and the Trustee. The Special Servicer, any single Holder or any group of Certificateholders evidencing a majority of the Voting Rights allocated to the Controlling Class and any assignees of the foregoing parties (collectively, the "Purchase Option Holders") shall each have the option to purchase such Specially Serviced Mortgage Loan at a cash price that is at least equal to the Purchase Price. In addition, if such Specially Serviced Mortgage Loan is part of a Loan Pair as to which there is a Pari Passu Companion Loan that has been securitized, the Special Servicer shall also send a copy of the notice described above to the parties under the circumstances provided related pooling and servicing agreement that have the equivalent rights as the Purchase Option Holders under this Agreement. The Special Servicer shall accept the first offer by a Purchase Option Holder that is at least equal to the Purchase Price. (c) If none of the Purchase Option Holders exercises its option to purchase any Specially Serviced Mortgage Loan as described in this Section 3.18(bsubsection (b) or above, then each Purchase Option Holder will also have the option to purchase that Specially Serviced Mortgage Loan at a price equal to the fair value of such Specially Serviced Mortgage Loan (the "FV Price"). With respect to any Loan Pair, the Purchase Option Holders will only have the right to purchase the related Trust Mortgage Loan. Upon receipt of a request from any Purchase Option Holder to determine the FV Price in Section 3.18(c) contemplation of its intention to exercise its option to purchase a Specially Serviced Mortgage Loan at a price that is in accordance with below the Servicing StandardPurchase Price, the Special Servicer shall promptly so notify obtain an MAI appraisal of the related Mortgaged Property by an Independent Appraiser (unless such an appraisal was obtained within one year of such date and the Special Servicer has no knowledge of any circumstances that would materially affect the validity of such appraisal). Promptly after obtaining such appraisal, the Special Servicer shall determine the FV Price in writing accordance with the Servicing Standard and the provisions of subsection (i) below. Promptly after determining the FV Price, the Special Servicer shall report such FV Price to the Trustee and each Purchase Option Holder. With respect to the Master ServicerWindsor Capital Portfolio Trust Loan, and the Trustee shallSpecial Servicer will use the FV Price determined by the 2003-C1 Special Servicer under the 2003-C1 PSA. With respect to each such Specially Serviced Mortgage Loan that is part of a Loan Pair as to which there is a Pari Passu Companion Loan that has been securitized, within 10 days after receipt of such notice, notify all the Certificateholders Special Servicer shall also send a copy of the Controlling Class. The Majority Certificateholder of notice containing the Controlling Class may at its option FV Price described above to the parties under the related pooling and servicing agreement that have the equivalent rights as the Purchase Option Holders under this Agreement. (d) In the event that the Special Servicer determines that it is willing, or another Purchase Option Holder notifies the Special Servicer that it is willing, to purchase from any Specially Serviced Mortgage Loan (the Trustparty submitting such bid, the "Initial Bidder") at a price equal to or above the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase FV Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchasea "FV Bid"), the Special Servicer shall deliver notify all other Purchase Option Holders that it has made or received, as the related Servicing File to case may be, such FV Bid (without disclosing the Certificateholder(s) effecting amount of such purchase (or any designee thereofFV Bid). (c) If . All other Purchase Option Holders may submit competing bids within the Majority Certificateholder ten Business Day period following such notice. At the conclusion of the Controlling Class has not purchased any Defaulted Mortgage Loan above-described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option purchase such Mortgage Loan from the Trust, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the Trust. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the Trustten Business Day period, the Special Servicer shall accept the highest cash offer bid received from any Person Purchase Option Holder that constitutes is at least equal to the FV Price. (e) If the Special Servicer accepts the bid of any Purchase Option Holder, such Purchase Option Holder shall be required to purchase the subject Specially Serviced Mortgage Loan within ten Business Days of receipt of notice of such acceptance. (f) If the Special Servicer has not accepted a FV Bid prior to the expiration of 120 days from its determination of the FV Price and thereafter receives a FV Bid or a request from a Purchase Option Holder for an updated FV Price, the Special Servicer shall within 45 days recalculate the FV Price (with no presumption that such FV Price should be reduced on account of the lack of an FV Bid) and repeat the notice and bidding procedure provided in subsection (d) above until the purchase option terminates under subsection (j) below. In connection with such recalculation, the Special Servicer may obtain an updated Appraisal if it determines that market conditions or conditions at the mortgaged property warrant an updated Appraisal. (g) If the party exercising the purchase option at the FV Price for any Specially Serviced Mortgage Loan is the Special Servicer or an Affiliate thereof, the Trustee shall verify that the FV Price is at least equal to the fair price for value of such Mortgage Loan. In determining whether the absence FV Price is at least equal to the fair value of such Mortgage Loan the Trustee will be permitted to conclusively rely on an appraisal obtained by the Trustee from an Independent Appraiser at the time it is required to verify the FV Price and/or the opinion of an Independent expert in real estate matters (including the Master Servicer) with at least 5 years' experience in valuing or investing in loans, similar to such Mortgage Loan, that has been selected by the Trustee with reasonable care at the expense of the Trust Fund. (h) Any Purchase Option Holder may, once such option is exercisable, assign its purchase option with respect to any offer determined as provided below Specially Serviced Mortgage Loan to a third party other than another Purchase Option Holder and upon such assignment such third party shall have all of the rights that had been granted to the Purchase Option Holder hereunder in respect of the purchase option. Such assignment shall only be faireffective upon written notice (together with a copy of the executed assignment and assumption agreement) being delivered to the Trustee, the Master Servicer and the Special Servicer. (i) In determining the FV Price for any Specially Serviced Mortgage Loan, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 andmay take into account, otherwiseamong other factors, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from results of any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes appraisal or updated appraisal that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and or the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted have obtained in accordance with this Agreement within the preceding 12-month period or, prior twelve months; the opinions on fair value expressed by Independent investors in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition mortgage loans comparable to the results of any Appraisal, updated Appraisal or narrative Appraisal that it may have obtained pursuant to this Agreement within the prior 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such subject Specially Serviced Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, Loan; the period and amount of any delinquency on the affected subject Specially Serviced Mortgage Loan, ; the occupancy level and physical condition of the related Mortgaged Property or REO Property, ; the state of the local economy economy; and the obligation to dispose of any REO Property within expected recoveries from the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted subject Specially Serviced Mortgage Loan if the Special Servicer were to pursue a workout or REO Property unless foreclosure strategy instead of selling such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed to a fair pricePurchase Option Holder. (fj) Subject The purchase option for any Specially Serviced Mortgage Loan pursuant to Sections 3.18(athis Section 3.19 shall terminate, and shall not be exercisable as set forth in subsections (b) through 3.18(eand (c) aboveabove (or if exercised, but the purchase of the subject Mortgage Loan has not yet occurred, shall terminate and be of no further force or effect) if and when (i) the Special Servicer has accepted a FV Bid, (ii) such Specially Serviced Mortgage Loan has become a Corrected Loan, (iii) the related Mortgaged Property has become an REO Property or (iv) a Final Recovery Determination has been made with respect to such Specially Serviced Mortgage Loan. (k) Until such time as an FV Bid is accepted, the Special Servicer shall act on behalf continue to pursue all of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 resolution options available to such sales or evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 or the Trustee shall have any liability to any Certificateholder it with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (g) Any sale of a Defaulted Specially Serviced Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard. (l) Notwithstanding anything to the contrary herein, that rejection of such offer would be in the best interests holders of the Certificateholders, and related Companion Loan shall be entitled to purchase the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, related Trust Mortgage Loans in accordance with the Servicing Standard, that acceptance of such offer would be terms and conditions set forth in the best interests related Co-Lender Agreement, even after it has been purchased out of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely Trust Fund pursuant to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable)this Section 3.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Greenwich Capital Comm Mort Pass THR Certs Ser 2003-C2), Pooling and Servicing Agreement (Greenwich Capital Comm Mort Pass THR Certs Ser 2003-C2)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 and 9.01. (b) [If the Special Servicer has determined, in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standard, the Special Servicer shall promptly so notify in writing the Trustee and Trustee, the Master ServicerServicer and each Rating Agency, and the Trustee shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling Class. The Majority Certificateholder of the Controlling Class may at its option purchase from the Trust, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof). (c) If the Majority Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option purchase such Mortgage Loan from the Trust, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell or otherwise realize upon any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the Trust. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the Trust, the Special Servicer shall accept the highest cash offer received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 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. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Nationslink Funding Corp Comm Mort Pass THR Cert Ser 1998-2), Pooling and Servicing Agreement (Nationslink Funding Corp Comm Mort Pass THR Cert Ser 1998-2)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 this Section 3.18 or Section 2.02 and, in either case, subject to the applicable terms and 9.01conditions set forth in the Indenture. (b) [If the Special Servicer has determined, in its reasonable good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee Trustee, the Master Servicer and the Master Servicer, and the Trustee shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling ClassIssuer. The Majority Certificateholder of the Controlling Class Issuer may at its option purchase from the Trust, at a price equal to the applicable Purchase Price, have any such Defaulted Mortgage LoanLoan released from the lien of the Indenture by delivering to the Master Servicer for deposit in the Collection Account a cash amount equal to the Purchase Price. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (Issuer or any its designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, and other documents as shall be provided to it and are reasonably necessary to release the Mortgage Loan from the lien of the Indenture and to vest in the Certificateholder(s) effecting such purchase (or any designee Issuer ownership thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof)Issuer. (c) If the Majority Certificateholder of the Controlling Class Issuer has not purchased removed from the Trust Estate any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) above within 15 30 days after receipt by the Issuer of its having received the notice in respect thereof pursuant to contemplated by Section 3.18(b)] above, then the Trustee shall promptly notify the Master Servicer and Special Servicer that the Issuer has not so removed such Mortgage Loan, and either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option option, within 30 days after receipt of such notice, purchase such Mortgage Loan from the TrustTrust Estate, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Collection Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, and other documents as shall be provided to it and are reasonably necessary to release the Mortgage Loan from the lien of the Indenture and to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loanthereof. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustBondholders and the Issuer (as a collective whole). Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Estate) for a period of not less than 30 10 days. Unless the Special Servicer determines that acceptance of any offer bid would not be in the best economic interests of the TrustBondholders and the Issuer (as a collective whole), the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer bid determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard3.09. The Special Servicer shall use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price [within a commercially reasonable time period] [within the time period provided for by Section 3.16(a)]. The Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneously, highest) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. [If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. .] The Special Servicer shall give the Trustee and the Master Servicer not less than five _____ Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer bid is from an Interested Person, by the Trustee. In determining whether any offer bid received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall be entitled to rely on the most recent Appraisal or updated Appraisal in the related Servicing File conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by new Appraisal, or if the most recent Appraisal is not more than 12 months old but there has been a Qualified Appraisermaterial change in such Mortgaged Property or REO Property during the prior 12 months, retained on an updated Appraisal, in any case to be obtained by the Special ServicerServicer (the cost of which shall constitute a Servicing Advance). Such On making any such determination of fair price based on the Appraisal, the Trustee shall be entitled to retain and may rely on the determinations of professional consultants. The cost of any such consultants shall be reimbursable to the Trustee from the funds on deposit in the Collection Account. The appraiser conducting any such new Appraisal shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer not bidding with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee Master Servicer if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced bidding and by the Trustee if both the Master Servicer, at the direction of Servicer and the Special Servicer, and shall constitute a Servicing AdvanceServicer are bidding. When Where any Interested Person is among those making an offer bidding with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers bids be submitted to it (and, if the Special Servicer is bidding, shall be submitted by it to the Trustee) in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered bid amount. In determining whether any offer bid from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months)described above, and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). The Purchase Price for any such Mortgage Loan or REO Property shall in all cases be deemed a fair price. Notwithstanding the other provisions of this Section 3.18, no cash offer bid from any Interested Person the Special Servicer or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer bid is the highest cash offer bid received and at least two additional offers independent bids (not including the offers bid of Interested Persons the Special Servicer or any Affiliates thereofAffiliate) have been received. In the event the bid of the Special Servicer or any Affiliate thereof is the only bid received from Independent third parties reflecting prices less than or is the related Purchase Pricehigher of only two bids received, then additional bids shall be solicited. The Purchase Price If an additional bid or bids, as the case may be, are received and the original bid of the Special Servicer or any Affiliate thereof is the highest of all cash bids received, then the bid of the Special Servicer or such Affiliate shall no longer be deemed not to constitute a fair price. A bid of the Special Servicer shall not be accepted in the absence of a determination by the Trustee, as provided above in this Section 3.18(e), that such bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property. Any bid by the Special Servicer shall be unconditional and if accepted the Defaulted Mortgage Loan or REO Property shall be transferred to the Special Servicer without recourse, representation or warranty other than customary representations as to title given in all cases be deemed connection with the sale of a fair pricemortgage loan or real property. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating with independent third parties and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerorsbidders, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales or evaluating offers bids without obligation to deposit such amounts into the Certificate Collection Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto and any customary closing matters)Estate, and if such sale is consummated in accordance with the terms of this Agreement, none of neither the Special Servicer, the Master Servicer or nor the Trustee shall have any liability to any Certificateholder Bondholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (g) Any sale of a Defaulted Mortgage Loan or any an REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration)only. (h) In connection with any sale or other transfer of a Defaulted Mortgage Loan or an REO Property pursuant to this Section 3.18, the Issuer shall deliver to the Trustee all certificates and opinions, if any, required by TIA ss. 314(c) and 314(d) and by Sections 8.04(b) and 12.01 of the Standard Indenture Provisions; and, notwithstanding anything herein to the contrary, no such sale may be consummated and none of the Trustee, the Master Servicer or the Special Servicer shall release any documents relating to such Defaulted Mortgage Loan or REO Property to the prospective purchaser or other transferee unless and until the Trustee receives any such certificates and opinions. (i) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer bid if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer bid would be in the best interests of the CertificateholdersBondholders and the Issuer (taken as a collective whole), and the Special Servicer may accept a lower cash offer bid (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer bid would be in the best interests of the Certificateholders Bondholders and the Issuer (taken as a collective whole) (for example, if the prospective buyer making the lower offer bid is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer bid are more favorable).

Appears in 2 contracts

Samples: Servicing and Administration Agreement (Criimi Mae CMBS Corp), Servicing and Administration Agreement (Criimi Mae CMBS Corp)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 and 9.01. (b) [If the Special Servicer has determined, in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standard, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling Class. The Majority Certificateholder of the Controlling Class may at its or their option purchase from the Trust, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Collection Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof). (c) If the Majority Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option purchase such Mortgage Loan from the Trust, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Collection Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the Trust. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the Trust, the Special Servicer shall accept the highest cash offer received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 evaluating offers without obligation to deposit such amounts into the Certificate Collection Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 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. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Mortgage Capital Funding Inc), Pooling and Servicing Agreement (Mortgage Capital Funding Inc)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto may Master Servicer, the Special Servicer or the Trustee shall sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only (i) on the terms and subject to the conditions set forth in this Section 3.18 or 3.19, (ii) as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.019.01 of this Agreement, (iii) in the case of the Loan Combinations, subject to the requirements of, and Companion Loan Noteholder rights set forth in, the related Co-Lender Agreement, and (iv) in the case of a Mortgage Loan with a related mezzanine loan, in connection with a Mortgage Loan default as set forth in the related intercreditor agreement. (b) [If The Special Servicer, any single Holder or any group of Certificateholders evidencing a majority of the Voting Rights allocated to the Controlling Class and any assignees (other than an assignee whose purchase of such Specially Serviced Mortgage Loan would violate the terms of any related mezzanine loan intercreditor agreement or Co-Lender Agreement) of the foregoing parties (collectively, the "Purchase Option Holders") shall each have the option to purchase a Specially Serviced Mortgage Loan at a cash price that is at least equal to the Purchase Price. In addition, if such Specially Serviced Mortgage Loan is part of a Loan Combination as to which there is a Pari Passu Companion Loan that has been securitized, the Special Servicer has determined, in shall also send a copy of the notice described above to the trustee under the related pooling and servicing agreement. (c) If none of the Purchase Option Holders exercises its good faith and reasonable judgment, that option to purchase any Defaulted Specially Serviced Mortgage Loan as described in subsection (b) above, then each Purchase Option Holder (other than an assignee whose purchase of such Specially Serviced Mortgage Loan would violate the terms of any related mezzanine loan intercreditor agreement or co-lender agreement) will become also have the subject option to purchase that Specially Serviced Mortgage Loan at a price equal to the fair value of such Specially Serviced Mortgage Loan (the "FV Price"). Any single Certificateholder or group of Certificateholders evidencing a majority of the Voting Rights allocated to the Controlling Class shall have the exclusive right to purchase the related Specially Serviced Mortgage Loan for sixty (60) days after receipt of the Special Servicer's report of such FV Price. Upon receipt of a foreclosure sale or similar proceeding, and that request from any Purchase Option Holder to determine the sale FV Price in contemplation of such its intention to exercise its option to purchase a Specially Serviced Mortgage Loan under at a price that is below the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing StandardPurchase Price, the Special Servicer shall promptly so notify obtain an MAI appraisal of the related Mortgaged Property by an Independent Appraiser (unless such an appraisal was obtained within one year of such date and the Special Servicer has no knowledge of any circumstances that would materially affect the validity of such appraisal). Promptly after obtaining such appraisal, the Special Servicer shall determine the FV Price in writing accordance with the Servicing Standard and the provisions of subsection (i) below. Promptly after determining the FV Price, the Special Servicer shall report such FV Price to the Trustee and each Purchase Option Holder. With respect to any Serviced Loan Combination, the Master ServicerPurchase Option Holders will only have the right to purchase the related Loan Combination Trust Mortgage Loan. With respect to each such Specially Serviced Mortgage Loan that is part of a Loan Combination as to which there is a Pari Passu Companion Loan that has been securitized, and the Trustee shall, within 10 days after receipt of such notice, notify all the Certificateholders Special Servicer shall also send a copy of the Controlling Class. The Majority Certificateholder of notice containing the Controlling Class may at its option FV Price described above to the parties under the related pooling and servicing agreement that have the equivalent rights as the Purchase Option Holders under this Agreement. (d) In the event that the Special Servicer determines that it is willing, or another Purchase Option Holder notifies the Special Servicer that it is willing, to purchase from any Specially Serviced Mortgage Loan (the Trustparty submitting such bid, the "Initial Bidder") at a price equal to or above the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase FV Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchasea "FV Bid"), the Special Servicer shall deliver notify all other Purchase Option Holders that it has made or received, as the related Servicing File to case may be, such FV Bid (without disclosing the Certificateholder(s) effecting amount of such purchase (or any designee thereofFV Bid). (c) If . All other Purchase Option Holders may submit competing bids within the Majority Certificateholder ten Business Day period following such notice. At the conclusion of the Controlling Class has not purchased any Defaulted Mortgage Loan above-described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option purchase such Mortgage Loan from the Trust, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the Trust. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the Trustten Business Day period, the Special Servicer shall accept the highest cash offer bid received from any Person Purchase Option Holder that constitutes is at least equal to the FV Price. (e) If the Special Servicer accepts the bid of any Purchase Option Holder, such Purchase Option Holder shall be required to purchase the subject Specially Serviced Mortgage Loan within ten (10) Business Days of receipt of notice of such acceptance. (f) If the Special Servicer has not accepted a FV Bid prior to the expiration of one hundred twenty (120) days from the Special Servicer's most recent determination of the FV Price and thereafter receives a FV Bid or a request from a Purchase Option Holder for an updated FV Price, the Special Servicer shall within forty-five (45) days recalculate the FV Price (with no presumption that such FV Price should be reduced on account of the lack of an FV Bid) and repeat the notice and bidding procedure provided in subsection (d) above until the purchase option terminates under subsection (j) below. In connection with such recalculation, the Special Servicer may obtain an updated Appraisal if it determines that market conditions or conditions at the mortgaged property warrant an updated Appraisal. In addition, the Special Servicer shall recalculate the FV Price of any Mortgage Loan if there has been a material change in circumstances of which the Special Servicer is aware or the Special Servicer has received new information, either of which has a material effect on the fair price value. (g) If the party exercising the purchase option at the FV Price for any Specially Serviced Mortgage Loan is the Special Servicer or an Affiliate thereof, the Trustee shall verify that the FV Price is at least equal to the fair value of such Mortgage Loan. In determining whether the absence FV Price is at least equal to the fair value of such Mortgage Loan the Trustee will be permitted to conclusively rely on an appraisal obtained by the Trustee from an Independent Appraiser at the time it is required to verify the FV Price and/or the opinion of an Independent expert in real estate matters (including the Master Servicer) with at least five (5) years' experience in valuing or investing in loans, similar to such Mortgage Loan, that has been selected by the Trustee with reasonable care at the expense of the Trust Fund. (h) Any Purchase Option Holder may, once such option is exercisable, assign its purchase option with respect to any offer determined as provided below Specially Serviced Mortgage Loan to a third party other than another Purchase Option Holder or any Person whose purchase of such Specially Serviced Mortgage Loan would violate any restrictions contained in any mezzanine intercreditor agreement or any Co-Lender Agreement and upon such assignment such third party shall have all of the rights that had been granted to the Purchase Option Holder hereunder in respect of the purchase option. Such assignment shall only be faireffective upon written notice (together with a copy of the executed assignment and assumption agreement) being delivered to the Trustee, the Master Servicer and the Special Servicer. (i) Subject to Section 3.09 and the other provisions of this Section 3.19, in determining the FV Price for any Specially Serviced Mortgage Loan, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 andmay take into account, otherwiseamong other factors, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from results of any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes appraisal or updated appraisal that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and or the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted have obtained in accordance with this Agreement within the preceding prior twelve (12-month period or, ) months; the opinions on fair value expressed by Independent investors in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition mortgage loans comparable to the results of any Appraisal, updated Appraisal or narrative Appraisal that it may have obtained pursuant to this Agreement within the prior 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such subject Specially Serviced Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, Loan; the period and amount of any delinquency on the affected subject Specially Serviced Mortgage Loan, ; the occupancy level and physical condition of the related Mortgaged Property or REO Property, ; the state of the local economy economy; and the obligation to dispose of any REO Property within expected recoveries from the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted subject Specially Serviced Mortgage Loan if the Special Servicer were to pursue a workout or REO Property unless foreclosure strategy instead of selling such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed to a fair pricePurchase Option Holder. (fj) Subject The purchase option for any Specially Serviced Mortgage Loan pursuant to Sections 3.18(athis Section 3.19 shall terminate, and shall not be exercisable as set forth in subsections (b) through 3.18(eand (c) aboveabove (or if exercised, but the Special Servicer shall act on behalf purchase of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted subject Mortgage Loan has not yet occurred, shall terminate and be of no further force or effect) if and when (i) such Specially Serviced Mortgage Loan has become a Corrected Mortgage Loan, (ii) the related Mortgaged Property has become an REO Property, Property or (iii) a Final Recovery Determination has been made with respect to such Specially Serviced Mortgage Loan. (k) Until such time as an FV Bid is accepted and the collection of all amounts payable related Specially Serviced Mortgage Loan is sold 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 shall continue to such sales or evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto and any customary closing matters), and if such sale is consummated in accordance with the terms of this Agreement, none pursue all of the Special Servicer, the Master Servicer or the Trustee shall have any liability other resolution options available to any Certificateholder it with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (g) Any sale of a Defaulted Specially Serviced Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard. (l) Notwithstanding anything to the contrary herein, that rejection of such offer would be in the best interests holders of the Certificateholders, and related Companion Loan shall be entitled to purchase the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, related Loan Combination Trust Mortgage Loans in accordance with the Servicing Standard, that acceptance of such offer would be terms and conditions set forth in the best interests related Co-Lender Agreement, even after it has been purchased out of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely Trust Fund pursuant to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable)this Section 3.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (COBALT CMBS Commercial Mortgage Trust 2007-C3)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only (i) on the terms and subject to the conditions set forth in this Section 3.18 or 3.19, (ii) as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.019.01 of this Agreement, (iii) in the case of the Loan Groups, subject to the requirements of, and Companion Loan Noteholder rights set forth in, in the related Co-Lender Agreement, and (iv) in the case of a Mortgage Loan with a related mezzanine loan, in connection with a Loan default as set forth in the related intercreditor agreement. (b) [If Within five Business Days after any Serviced Loan has become a Specially Serviced Loan, the Special Servicer has determinedshall give notice of such event to the Trustee, in its good faith and reasonable judgment, that any Defaulted Mortgage Loan the Trustee will become the subject promptly notify each Holder of a foreclosure sale Certificate of the Controlling Class. The Special Servicer, any single Holder or similar proceeding, any group of Certificateholders evidencing a majority of the Voting Rights allocated to the Controlling Class and that the sale any assignees (other than an assignee whose purchase of such Mortgage Specially Serviced Loan would violate the terms of any related mezzanine loan intercreditor agreement or Co-Lender Agreement) of the foregoing parties (collectively, the "Purchase Option Holders") shall each have the option to purchase such Specially Serviced Loan at a cash price that is at least equal to the Purchase Price. In addition, if such Specially Serviced Loan is part of a Loan Group as to which there is a Pari Passu Companion Loan that has been securitized, the Special Servicer shall also send a copy of the notice described above to the trustee under the circumstances provided related pooling and servicing agreement. (c) If none of the Purchase Option Holders exercises its option to purchase any Specially Serviced Loan as described in this Section 3.18(bsubsection (b) above, then each Purchase Option Holder (other than an assignee whose purchase of such Specially Serviced Loan would violate the terms of any related mezzanine loan intercreditor agreement or co-lender agreement) will also have the option to purchase that Specially Serviced Loan at a price equal to the fair value of such Specially Serviced Loan (the "FV Price"). Upon receipt of a request from any Purchase Option Holder to determine the FV Price in Section 3.18(c) contemplation of its intention to exercise its option to purchase a Specially Serviced Loan at a price that is in accordance with below the Servicing StandardPurchase Price, the Special Servicer shall promptly so notify obtain an MAI appraisal of the related Mortgaged Property by an Independent Appraiser (unless such an appraisal was obtained within one year of such date and the Special Servicer has no knowledge of any circumstances that would materially affect the validity of such appraisal). Promptly after obtaining such appraisal, the Special Servicer shall determine the FV Price in writing accordance with the Servicing Standard and the provisions of subsection (j) below. Promptly after determining the FV Price, the Special Servicer shall report such FV Price to the Trustee and each Purchase Option Holder. With respect to any Serviced Loan Group, the Master ServicerPurchase Option Holders will only have the right to purchase the related Loan Group Trust Mortgage Loan. With respect to each such Specially Serviced Loan that is part of a Loan Group as to which there is a Pari Passu Companion Loan that has been securitized, the Special Servicer shall also send a copy of the notice containing the FV Price described above to the parties under the related pooling and servicing agreement that have the equivalent rights as the Purchase Option Holders under this Agreement. With respect to each of the Non-Serviced Trust Loans, this Section 3.19 shall not be applicable, and any rights of any Persons to exercise its option to purchase such Loan Group Trust Mortgage Loans shall be determined in accordance with the Trustee shall, within 10 days after receipt terms of the related Lead PSA and the related Co-Lender Agreement by the parties specified therein (and the Trust shall sell such Loan Group Trust Mortgage Loan in compliance with such terms). Any proceeds from such sale of a Non-Serviced Trust Loan pursuant to the exercise of such noticeoption shall be treated for purposes of this Agreement in the same manner as funds received in connection with the sale of any Serviced Loan Group Trust Mortgage Loan in accordance with the provisions of this Section 3.19. (d) In the event that the Special Servicer determines that it is willing, notify all or another Purchase Option Holder notifies the Certificateholders of Special Servicer that it is willing, to purchase any Specially Serviced Mortgage Loan (the Controlling Class. The Majority Certificateholder of party submitting such bid, the Controlling Class may at its option purchase from the Trust, "Initial Bidder") at a price equal to or above the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase FV Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchasea "FV Bid"), the Special Servicer shall deliver notify all other Purchase Option Holders that it has made or received, as the related Servicing File to case may be, such FV Bid (without disclosing the Certificateholder(s) effecting amount of such purchase (or any designee thereofFV Bid). (c) If . All other Purchase Option Holders may submit competing bids within the Majority Certificateholder ten Business Day period following such notice. At the conclusion of the Controlling Class has not purchased any Defaulted Mortgage Loan above-described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option purchase such Mortgage Loan from the Trust, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the Trust. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the Trustten Business Day period, the Special Servicer shall accept the highest cash offer bid received from any Person Purchase Option Holder that constitutes is at least equal to the FV Price. (e) If the Special Servicer accepts the bid of any Purchase Option Holder, such Purchase Option Holder shall be required to purchase the subject Specially Serviced Mortgage Loan within ten Business Days of receipt of notice of such acceptance. (f) If the Special Servicer has not accepted a FV Bid prior to the expiration of 120 days from the Special Servicer's most recent determination of the FV Price and thereafter receives a FV Bid or a request from a Purchase Option Holder for an updated FV Price, the Special Servicer shall within 45 days recalculate the FV Price (with no presumption that such FV Price should be reduced on account of the lack of an FV Bid) and repeat the notice and bidding procedure provided in subsection (c) above until the purchase option terminates under subsection (j) below. In connection with such recalculation, the Special Servicer may obtain an updated Appraisal if it determines that market conditions or conditions at the mortgaged property warrant an updated Appraisal. In addition, the Special Servicer shall recalculate the FV Price of any Mortgage Loan if there has been a material change in circumstances of which the Special Servicer is aware or the Special Servicer has received new information, either of which has a material effect on the fair price value. (g) If the party exercising the purchase option at the FV Price for any Specially Serviced Loan is the Special Servicer or an Affiliate thereof, the Trustee shall verify that the FV Price is at least equal to the fair value of such Mortgage Loan. In determining whether the absence FV Price is at least equal to the fair value of such Mortgage Loan the Trustee will be permitted to conclusively rely on an appraisal obtained by the Trustee from an Independent Appraiser at the time it is required to verify the FV Price and/or the opinion of an Independent expert in real estate matters (including the Master Servicer) with at least 5 years' experience in valuing or investing in loans, similar to such Mortgage Loan, that has been selected by the Trustee with reasonable care at the expense of the Trust Fund. (h) Any Purchase Option Holder may, once such option is exercisable, assign its purchase option with respect to any offer determined as provided below Specially Serviced Loan to a third party other than another Purchase Option Holder or any Person whose purchase of such Specially Serviced Loan would violate any restrictions contained in any mezzanine intercreditor agreement or any Co-Lender Agreement and upon such assignment such third party shall have all of the rights that had been granted to the Purchase Option Holder hereunder in respect of the purchase option. Such assignment shall only be faireffective upon written notice (together with a copy of the executed assignment and assumption agreement) being delivered to the Trustee, the Master Servicer and the Special Servicer. (i) In determining the FV Price for any Specially Serviced Loan, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 andmay take into account, otherwiseamong other factors, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from results of any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes appraisal or updated appraisal that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and or the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted have obtained in accordance with this Agreement within the preceding 12-month period or, prior twelve months; the opinions on fair value expressed by Independent investors in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition mortgage loans comparable to the results of any Appraisal, updated Appraisal or narrative Appraisal that it may have obtained pursuant to this Agreement within the prior 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, subject Specially Serviced Loan; the period and amount of any delinquency on the affected Mortgage subject Specially Serviced Loan, ; the occupancy level and physical condition of the related Mortgaged Property or REO Property, ; the state of the local economy economy; and the obligation expected recoveries from the subject Specially Serviced Loan if the Special Servicer were to dispose pursue a workout or foreclosure strategy instead of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted selling such Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related to a Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair priceOption Holder. (fj) Subject The purchase option for any Specially Serviced Loan pursuant to Sections 3.18(athis Section 3.19 shall terminate, and shall not be exercisable as set forth in subsections (b) through 3.18(eand (c) aboveabove (or if exercised, but the Special Servicer shall act on behalf purchase of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted subject Mortgage Loan has not yet occurred, shall terminate and be of no further force or effect) if and when (i) such Specially Serviced Loan has become a Corrected Loan, (ii) the related Mortgaged Property has become an REO Property, Property or (iii) a Final Recovery Determination has been made with respect to such Specially Serviced Loan. (k) Until such time as an FV Bid is accepted and the collection of all amounts payable related Specially Serviced Mortgage Loan is sold 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 shall continue to such sales or evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto and any customary closing matters), and if such sale is consummated in accordance with the terms of this Agreement, none pursue all of the Special Servicer, the Master Servicer or the Trustee shall have any liability other resolution options available to any Certificateholder it with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (g) Any sale of a Defaulted Mortgage Specially Serviced Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard. (l) Notwithstanding anything to the contrary herein, that rejection of such offer would be in the best interests holders of the Certificateholders, and related Companion Loan shall be entitled to purchase the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, related Loan Group Trust Mortgage Loans in accordance with the Servicing Standard, that acceptance of such offer would be terms and conditions set forth in the best interests related Co-Lender Agreement, even after it has been purchased out of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely Trust Fund pursuant to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable)this Section 3.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Greenwich Capital Commercial Funding Corp)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a), 2.02(b) and 9.01. (b) [If Subject to Sections 2.03(a) and 2.02(b), if the Special Servicer has determineddetermined in good faith, in its good faith and after making reasonable judgmentefforts to specially service such Defaulted Mortgage Loan, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee Trustee, following its receipt of such notice, shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling ClassMajority Subordinate Certificateholder. The Majority Subordinate Certificateholder of the Controlling Class may at its option purchase from the TrustTrust Fund, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof)Majority Subordinate Certificateholder. (c) If the Majority Subordinate Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 30 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Master Servicer or the Special Servicer or, subject (with preference given to the Special Servicer's prior rights in such regard, the Master Servicer ) may at its option purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Subject to Section 6.11, the Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section Sections 3.18(b) or Section and 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustTrust Fund. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 10 days. Unless the Special Servicer determines that acceptance of any offer bid would not be in the best economic interests of the TrustCertificateholders, the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer bid determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and3.09. Subject to Section 6.11, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneouslycontemporaneously or subsequently, the highest, provided that the Special Servicer is not obligated to the first bidder) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee(except as otherwise provided below in this Section 3.18(e)). In determining whether any offer bid received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee Special Servicer shall be supplied with and shall may rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared at the expense of the Trust Fund by a Qualified an Independent Appraiser, retained by the Special Servicer. (The Special Servicer may rely on a certification of any bidder to the effect that such bidder is not an Interested Person.) Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer not bidding with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee Master Servicer if the Special Servicer is bidding. (The Master Servicer shall not bid with respect to a Defaulted Mortgage Loan or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of REO Property if the Special Servicer, and shall constitute Servicer has informed it that the Special Servicer intends to submit a Servicing Advance. When bid.) Where any Interested Person is among those making an offer bidding with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers bids be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered bid amount. In determining whether any offer bid from a Person other than an Interested Person or from an Interested Person other than the Special Servicer constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative Appraisal appraisal described above and any appraisal that it may have obtained pursuant to this Agreement within the prior 12 monthsSection 3.09(a)), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). The Purchase Price for any such Mortgage Loan or REO Property shall in all cases be deemed a fair price. Notwithstanding the other provisions of this Section 3.183.18 (but excluding a purchase pursuant to Section 3.18(c)), no cash offer bid from any Interested Person the Master Servicer, Special Servicer or any Affiliate of their Affiliates thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer bid is the highest cash offer bid received and at least two additional offers independent bids (not including the offers bid of Interested Persons the Master Servicer, Special Servicer or any Affiliates thereofAffiliate) have been received. In the event the bid of the Special Servicer or any Affiliate is the only bid received from Independent third parties reflecting prices less than or is the related Purchase Pricehigher of only two bids received, then additional bids shall be solicited. The Purchase Price for If an additional bid or bids are received and the original bid of the Special Servicer or any Defaulted Mortgage Loan Affiliate is the highest of all bids received, then the bid of the Special Servicer or REO Property such Affiliate shall in all cases no longer be deemed not to constitute a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) aboveabove and Section 6.11, the Special Servicer shall act on behalf of the Trustee in negotiating with independent third parties and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerorsbidders, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales or evaluating offers bids without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and final, without recourse to the Trustee or the Trust (except such recourse imposed by those Fund and without representations and warranties typically given in such transactionsof title and condition, any prorations applied thereto and any customary closing matters)unless liability for breach thereof is limited to recourse against the Trust Fund, and if such sale is consummated in accordance with the terms of this Agreement, none of neither the Special Servicer, the Master Servicer or nor the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, unless changes in the REMIC Provisions or authoritative interpretations thereof made or issued subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding The Special Servicer shall not be obligated by any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated 3.18 to accept the highest cash offer bid if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer bid would be in the best interests of the Certificateholders. In addition, and the Special Servicer may accept a lower cash offer bid (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer bid would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer bid is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer bid are more favorable).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass Through Certiticates Series 1999 C2)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only (i) on the terms and subject to the conditions set forth in this Section 3.18 or 3.19, (ii) as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.019.01 of this Agreement, (iii) in the case of the Loan Groups, subject to the requirements of, and Companion Loan Noteholder rights set forth in, in the related Co-Lender Agreement, and (iv) in the case of a Mortgage Loan with a related mezzanine loan, in connection with a Loan default as set forth in the related intercreditor agreement. (b) [If Within five Business Days after any Serviced Loan has become a Specially Serviced Loan, the Special Servicer has determined, in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject shall give notice of such event to each Holder of a foreclosure sale Certificate of the Controlling Class and to the Trustee. The Special Servicer, any single Holder or similar proceeding, any group of Certificateholders evidencing a majority of the Voting Rights allocated to the Controlling Class and that the sale any assignees (other than an assignee whose purchase of such Mortgage Specially Serviced Loan would violate the terms of any related mezzanine loan intercreditor agreement or Co-Lender Agreement) of the foregoing parties (collectively, the "Purchase Option Holders") shall each have the option to purchase such Specially Serviced Loan at a cash price that is at least equal to the Purchase Price. In addition, if such Specially Serviced Loan is part of a Loan Group as to which there is a Pari Passu Companion Loan that has been securitized, the Special Servicer shall also send a copy of the notice described above to the trustee under the circumstances provided related pooling and servicing agreement. (c) If none of the Purchase Option Holders exercises its option to purchase any Specially Serviced Loan as described in this subsection (b) above, then any single Holder or any group of Certificateholders evidencing a majority of the Voting Rights allocated to the Controlling Class (other than an assignee whose purchase of such Specially Serviced Loan would violate the terms of any related mezzanine loan intercreditor agreement or co-lender agreement) will also have the option to purchase that Specially Serviced Loan at a price equal to the fair value of such Specially Serviced Loan (the "FV Price"). The Holders of a majority of the Voting Rights allocated to the Controlling Class will have the exclusive option to purchase such Specially Serviced Loan at the FV Price for a period of 60 days after receipt of notice from the Special Servicer pursuant to Section 3.18(b3.19(b) above. After the expiration of such 60-day period, the Special Servicer shall have the exclusive right to exercise the option to purchase such Specially Serviced Loan at the FV Price for a 30-day period. If such Specially Serviced Loan has not been purchased by the Special Servicer during such 30-day period, the option to purchase such Specially Serviced Loan at its FV Price may be exercised by either the Special Servicer or the Holders of Certificates representing a majority of the Voting Rights allocated to the Controlling Class, except that prior to any purchase by the Special Servicer, the Special Servicer shall give 15 days prior written notice of its intent to exercise such option to such Certificateholders and such Certificateholders shall have a right of first refusal to purchase such Specially Serviced Loan during such 15-day period. Upon receipt of a request from any Purchase Option Holder to determine the FV Price in Section 3.18(c) contemplation of its intention to exercise its option to purchase a Specially Serviced Loan at a price that is in accordance with below the Servicing StandardPurchase Price, the Special Servicer shall promptly so notify obtain an MAI appraisal of the related Mortgaged Property by an Independent Appraiser (unless such an appraisal was obtained within one year of such date and the Special Servicer has no knowledge of any circumstances that would materially affect the validity of such appraisal). Promptly after obtaining such appraisal, the Special Servicer shall determine the FV Price in writing accordance with the Servicing Standard and the provisions of subsection (j) below. Promptly after determining the FV Price, the Special Servicer shall report such FV Price to the Trustee and each Purchase Option Holder. With respect to any Serviced Loan Group, the Master ServicerPurchase Option Holders will only have the right to purchase the related Loan Group Trust Mortgage Loan. With respect to each such Specially Serviced Loan that is part of a Loan Group as to which there is a Pari Passu Companion Loan that has been securitized, the Special Servicer shall also send a copy of the notice containing the FV Price described above to the parties under the related pooling and servicing agreement that have the equivalent rights as the Purchase Option Holders under this Agreement. (d) With respect to each of the Non-Serviced Trust Loans, this Section 3.19 shall not be applicable, and any rights of any Persons to exercise its option to purchase such Loan Group Trust Mortgage Loans shall be determined in accordance with the terms of the related Lead PSA and the related Co-Lender Agreement by the parties specified therein (and the Trust shall sell such Loan Group Trust Mortgage Loan in compliance with such terms). Any proceeds from such sale of a Non-Serviced Trust Loan pursuant to the exercise of such option shall be treated for purposes of this Agreement in the same manner as funds received in connection with the sale of any Serviced Loan Group Trust Mortgage Loan in accordance with the provisions of this Section 3.19. (e) Any Purchase Option Holder shall be required to purchase the subject Specially Serviced Loan within ten Business Days of notice of its intent to exercise its purchase option. (f) If none of the Purchase Option Holders have exercised their option to purchase a Specially Serviced Loan under this Section 3.19 prior to the expiration of 120 days from the Special Servicer's most recent determination of the FV Price and thereafter receives a request from a Purchase Option Holder for an updated FV Price, or the Special Servicer receives notice that a Purchase Option Holder intends to exercise its purchase option, the Special Servicer shall be required to recalculate the FV Price (with no presumption that such FV Price should be reduced on account of the lack of a prior purchase of such Specially Serviced Loan). In connection with such recalculation, the Special Servicer may obtain an updated Appraisal if it determines that market conditions or conditions at the mortgaged property warrant an updated Appraisal. In addition, the Special Servicer shall recalculate the FV Price of any Mortgage Loan if there has been a material change in circumstances of which the Special Servicer is aware or the Special Servicer has received new information, either of which has a material effect on the fair value. (g) If the party exercising the purchase option at the FV Price for any Specially Serviced Loan is the Special Servicer or an Affiliate thereof, the Trustee shall, within 10 days after receipt of such notice, notify all shall verify that the Certificateholders of the Controlling Class. The Majority Certificateholder of the Controlling Class may FV Price is at its option purchase from the Trust, at a price least equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership fair value of such Mortgage Loan. In connection determining whether the FV Price is at least equal to the fair value of such Mortgage Loan the Trustee will be permitted to conclusively rely on an appraisal obtained by the Trustee from an Independent Appraiser at the time it is required to verify the FV Price and/or the opinion of an Independent expert in real estate matters (including the Master Servicer) with at least 5 years' experience in valuing or investing in loans, similar to such Mortgage Loan, that has been selected by the Trustee with reasonable care at the expense of the Trust Fund. (h) Any Purchase Option Holder may, once such option is exercisable, assign its purchase option with respect to any Specially Serviced Loan to a third party other than another Purchase Option Holder or any Person whose purchase of such purchaseSpecially Serviced Loan would violate any restrictions contained in any mezzanine intercreditor agreement or any Co-Lender Agreement and upon such assignment such third party shall have all of the rights that had been granted to the Purchase Option Holder hereunder in respect of the purchase option. Such assignment shall only be effective upon written notice (together with a copy of the executed assignment and assumption agreement) being delivered to the Trustee, the Master Servicer and the Special Servicer. (i) In determining the FV Price for any Specially Serviced Loan, the Special Servicer shall deliver may take into account, among other factors, the related Servicing File to the Certificateholder(s) effecting such purchase (results of any appraisal or any designee thereof). (c) If the Majority Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, updated appraisal that it or the Master Servicer may at its option purchase such Mortgage Loan from the Trust, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the Trust. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the Trust, the Special Servicer shall accept the highest cash offer received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted have obtained in accordance with this Agreement within the preceding 12-month period or, prior twelve months; the opinions on fair value expressed by Independent investors in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition mortgage loans comparable to the results of any Appraisal, updated Appraisal or narrative Appraisal that it may have obtained pursuant to this Agreement within the prior 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, subject Specially Serviced Loan; the period and amount of any delinquency on the affected Mortgage subject Specially Serviced Loan, ; the occupancy level and physical condition of the related Mortgaged Property or REO Property, ; the state of the local economy economy; and the obligation expected recoveries from the subject Specially Serviced Loan if the Special Servicer were to dispose pursue a workout or foreclosure strategy instead of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted selling such Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related to a Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair priceOption Holder. (fj) Subject The purchase option for any Specially Serviced Loan pursuant to Sections 3.18(athis Section 3.19 shall terminate, and shall not be exercisable as set forth in subsections (b) through 3.18(eand (c) aboveabove (or if exercised, but the purchase of the subject Mortgage Loan has not yet occurred, shall terminate and be of no further force or effect) if and when (i) such Specially Serviced Loan has become a Corrected Loan, (ii) the related Mortgaged Property has become an REO Property or (iii) a Final Recovery Determination has been made with respect to such Specially Serviced Loan. (k) Until such time as a Specially Serviced Loan is purchased by a Purchase Option Holder in accordance with this Section 3.19, the Special Servicer shall act on behalf continue to pursue all of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 resolution options available to such sales or evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 or the Trustee shall have any liability to any Certificateholder it with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (g) Any sale of a Defaulted Mortgage Specially Serviced Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard. (l) Notwithstanding anything to the contrary herein, that rejection of such offer would be in the best interests holders of the Certificateholders, and related Companion Loan shall be entitled to purchase the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, related Loan Group Trust Mortgage Loans in accordance with the Servicing Standard, that acceptance of such offer would be terms and conditions set forth in the best interests related Co-Lender Agreement, even after it has been purchased out of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely Trust Fund pursuant to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable)this Section 3.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (GCCFC 2005-Gg3)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.01. (b) [If Subject to Section 2.03(a), if the Special Servicer has determineddetermined in good faith, in its good faith and after making reasonable judgmentefforts to specially service such Defaulted Mortgage Loan, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee Trustee, following its receipt of such notice, shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling ClassMajority Subordinate Certificateholder. The Majority Subordinate Certificateholder of the Controlling Class may at its option purchase from the TrustTrust Fund, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof)Majority Subordinate Certificateholder. (c) If the Majority Subordinate Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 30 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Master Servicer or the Special Servicer or, subject (with preference given to the Special Servicer's prior rights in such regard, the Master Servicer ) may at its option purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Subject to Section 6.11, the Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section Sections 3.18(b) or Section and 3.18(c) aboveabove or pursuant to Section 3.18(i), if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustTrust Fund. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 10 days. Unless the Special Servicer determines that acceptance of any offer bid would not be in the best economic interests of the TrustCertificateholders, the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer bid determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and3.09. Subject to Section 6.11, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneouslycontemporaneously or subsequently, the highest, provided that the Special Servicer is not obligated to the first bidder) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee(except as otherwise provided below in this Section 3.18(e)). In determining whether any offer bid received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee Special Servicer shall be supplied with and shall may rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal by an Independent Appraiser, prepared by a Qualified Appraiserat the expense of the Trust Fund, retained by the Special Servicer. The Special Servicer may rely on a certification of any bidder to the effect that such bidder is not an Interested Person. Such appraiser shall be selected by by: (i) the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making bidding with respect to a Defaulted Mortgage Loan or REO Property; (ii) the Master Servicer if the Special Servicer or any Affiliate thereof is bidding and the Special Servicer is not an offer Affiliate of the Master Servicer; or (iii) the Trustee if the Master Servicer and the Special Servicer are Affiliates and the Master Servicer or Special Servicer or any Affiliate thereof is bidding. The Master Servicer shall not bid with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an any Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of has informed it that the Special Servicer, and shall constitute Servicer intends to submit a Servicing Advancebid. When Where any Interested Person is among those making an offer bidding with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers bids be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered bid amount. In determining whether any offer bid from a Person other than an Interested Person or from an Interested Person other than the Special Servicer, constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative Appraisal appraisal described above and any appraisal that it may have obtained pursuant to this Agreement within the prior 12 monthsSection 3.09(a)), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). The Purchase Price for any such Mortgage Loan or REO Property shall in all cases be deemed a fair price. Notwithstanding the other provisions of this Section 3.183.18 (but excluding a purchase pursuant to Section 3.18(c)), no cash offer bid from any Interested Person the Master Servicer, Special Servicer or any Affiliate of their Affiliates thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer bid is the highest cash offer bid received and at least two additional offers independent bids (not including the offers bid of Interested Persons the Master Servicer, Special Servicer or any Affiliates thereofAffiliate) have been received. In the event the bid of the Special Servicer or any Affiliate is the only bid received from Independent third parties reflecting prices less than or is the related Purchase Pricehigher of only two bids received, then additional bids shall be solicited. The Purchase Price for If an additional bid or bids are received and the original bid of the Special Servicer or any Defaulted Mortgage Loan Affiliate is the highest of all bids received, then the bid of the Special Servicer or REO Property such Affiliate shall in all cases no longer be deemed not to constitute a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) aboveabove and Section 6.11, the Special Servicer shall act on behalf of the Trustee in negotiating with independent third parties and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerorsbidders, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales or evaluating offers bids without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and final, without recourse to the Trustee or the Trust (except such recourse imposed by those Fund and without representations and warranties typically given in such transactionsof title and condition, any prorations applied thereto and any customary closing matters)unless liability for breach thereof is limited to recourse against the Trust Fund, and if such sale is consummated in accordance with the terms of this Agreement, none of neither the Special Servicer, the Master Servicer or nor the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, unless changes in the REMIC Provisions or authoritative interpretations thereof made or issued subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding The Special Servicer shall not be obligated by any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated 3.18 to accept the highest cash offer bid if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer bid would be in the best interests of the Certificateholders. In addition, and the Special Servicer may accept a lower cash offer bid (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer bid would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer bid is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer bid are more favorable).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Union Com Mor Sec Inc Com Mor Pass THR Cer Ser 2001-C1)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.01. (b) [If Subject to Section 2.03(a), if the Special Servicer has determineddetermined in good faith, in its good faith and after making reasonable judgmentefforts to specially service such Defaulted Mortgage Loan, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee Trustee, following its receipt of such notice, shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling ClassMajority Subordinate Certificateholder. The Majority Subordinate Certificateholder of the Controlling Class may at its option option, but subject to the right of the Class Q Certificateholder pursuant to Section 3.18(i) and the right of the Companion Holder pursuant to Section 3.18(j), purchase from the TrustTrust Fund, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof)Majority Subordinate Certificateholder. (c) If the Majority Subordinate Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 30 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Master Servicer or the Special Servicer or, subject (with preference given 122 to the Special Servicer's prior rights in such regard, the Master Servicer ) may at its option option, but subject to the right of the Class Q Certificateholder pursuant to Section 3.18(i) and the right of the Companion Holder pursuant to Section 3.18(j), purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Subject to Section 6.11, the Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section Sections 3.18(b) and 3.18(c) above or pursuant to Sections 3.18(i) or Section 3.18(c) above3.18(j), if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustTrust Fund. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 10 days. Unless the Special Servicer determines that acceptance of any offer bid would not be in the best economic interests of the TrustCertificateholders, the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer bid determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and3.09. Subject to Section 6.11, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneouslycontemporaneously or subsequently, the highest, provided that the Special Servicer is not obligated to the first bidder) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. The Liquidation Proceeds (net of related Liquidation Expenses) for any REO Property or Mortgage Loan purchased hereunder shall be deposited in the Certificate Account, except that any portion of proceeds consisting of Excess Liquidation Proceeds shall be deposited in the Excess Liquidation Proceeds and PPIE Reserve Account. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee(except as otherwise provided below in this Section 3.18(e)). In determining whether any offer bid received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee Special Servicer shall be supplied with and shall may rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by an Independent Appraiser (the cost of which shall be paid by the Master Servicer as a Qualified AppraiserServicing Advance), retained by the Special Servicer. The Special Servicer may rely on a certification of any bidder to the effect that such bidder is not an Interested Person. Such appraiser shall be selected by (i) the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer bidding with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by (ii) the Trustee Master Servicer if the Special Servicer or an any Affiliate thereof is making such bidding and the Special Servicer is not an offer. The cost Affiliate of any such narrative appraisal shall be advanced by the Master Servicer, at ; or (iii) the direction of Trustee if the Master Servicer and the Special Servicer, Servicer are Affiliates and the Master Servicer or Special Servicer or any Affiliate thereof is bidding. The Master Servicer shall constitute not bid with respect to a Servicing AdvanceDefaulted Mortgage Loan or REO Property if the Special Servicer or any Affiliate thereof has informed it that the Special Servicer intends to submit a bid. When Where any Interested Person is among those making an offer bidding with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers bids be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered bid amount. In determining whether any offer bid from a Person other than an Interested Person or from an Interested Person other than the Special Servicer or any Affiliate thereof or the Master Servicer or any Affiliate thereof, constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative Appraisal appraisal described above and any appraisal that it may have obtained pursuant to this Agreement within the prior 12 monthsSection 3.09(a)), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). The Purchase Price for any such Mortgage Loan or REO Property shall in all cases be deemed a fair price. Notwithstanding the other provisions of this Section 3.183.18 (but excluding a purchase pursuant to Section 3.18(c)), no cash offer bid from any Interested Person the Master Servicer, Special Servicer or any Affiliate of their Affiliates thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer bid is the highest cash offer bid received and at least two additional offers independent bids (not including the offers bid of Interested Persons the Master Servicer, Special Servicer or any Affiliates thereofAffiliate) have been received. In the event the bid of the Special Servicer or any Affiliate is the only bid received from Independent third parties reflecting prices less than or is the related Purchase Pricehigher of only two bids received, then additional bids shall be solicited. The Purchase Price for If an additional bid or bids are received and the original bid of the Special Servicer or any Defaulted Mortgage Loan Affiliate is the highest of all bids received, then the bid of the Special Servicer or REO Property such Affiliate shall in all cases no longer be deemed not to constitute a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) aboveabove and Section 6.11, the Special Servicer shall act on behalf of the Trustee in negotiating with independent third parties and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerorsbidders, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales or evaluating offers bids without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and final, without recourse to the Trustee or the Trust (except such recourse imposed by those Fund and without representations and warranties typically given in such transactionsof title and condition, any prorations applied thereto and any customary closing matters)unless liability for breach thereof is limited to recourse against the Trust Fund, and if such sale is consummated in accordance with the terms of this Agreement, none of neither the Special Servicer, the Master Servicer or nor the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, unless changes in the REMIC Provisions or authoritative interpretations thereof made or issued subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding The Special Servicer shall not be obligated by any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated 3.18 to accept the highest cash offer bid if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer bid would be in the best interests of the Certificateholders. In addition, and the Special Servicer may accept a lower cash offer bid (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer bid would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer bid is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer bid are more favorable). (i) If the Xxxxxxxxx Mortgage Loan becomes a Defaulted Mortgage Loan, the Special Servicer shall promptly notify in writing the Master Servicer and the Trustee, and the Trustee, following its receipt of such notice, shall promptly notify the Class Q Certificateholder. Upon receipt of such notice, the Class Q Certificateholder will have the first option, but not the obligation, to purchase the Xxxxxxxxx Mortgage Loan (including the Subordinate Component thereof) from the Trust Fund at a price equal to the Purchase Price thereof. If the Class Q Certificateholder fails to exercise such option within 15 days after receipt of such notice, then the Xxxxxxxxx Mortgage Loan may be sold in accordance with Sections 3.18(b), (c) and (d). The Purchase Price for the Xxxxxxxxx Mortgage Loan purchased under this paragraph (i) shall be deposited into the Certificate Account, and the Custodian, upon receipt of an Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Class Q Certificateholder the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the holder of the Class Q Certificateholder ownership of such Xxxxxxxxx Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Class Q Certificateholder. (j) The Companion Holder shall have the right to purchase the Crowne Plaza Mortgage Loan or related REO Property in accordance with the terms of the Co-Lender Agreement. If the Crowne Plaza Mortgage Loan or REO Property is purchased by the Companion Holder, repurchased by the applicable Mortgage Loan Originator or otherwise ceases to be subject to this Agreement, the Crowne Plaza Companion Loan will no longer be subject to this Agreement. The amount paid for the Crowne Plaza Mortgage Loan or related REO Property purchased under this paragraph (j) shall be applied in accordance with the Co-Lender Agreement and be deposited into the Certificate Account or to the extent of any Excess Liquidation Proceeds, to the Excess Liquidation Proceeds and PPIE Reserve Account, and the Custodian, upon receipt of an Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Companion Holder the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to in and are reasonably necessary to vest in the Companion Holder ownership of the Crowne Plaza Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Companion Holder.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only (i) on the terms and subject to the conditions set forth in this Section 3.18 or 3.19, (ii) as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.019.01 of this Agreement, (iii) in the case of the Loan Groups, subject to the requirements of, and Companion Loan Noteholder rights set forth in, in the related Co-Lender Agreement, and (iv) in the case of a Mortgage Loan with a related mezzanine loan, in connection with a Loan default as set forth in the related intercreditor agreement. (b) [If Within five Business Days after any Serviced Mortgage Loan has become a Specially Serviced Mortgage Loan, the Special Servicer has determinedshall give notice of such event to each Holder of a Certificate of the Controlling Class and to the Trustee. The Special Servicer, in its good faith any single Holder or any group of Certificateholders evidencing a majority of the Voting Rights allocated to the Controlling Class and reasonable judgment, that any Defaulted assignees (other than an assignee whose purchase of such Specially Serviced Mortgage Loan will become would violate the subject terms of any related mezzanine loan intercreditor agreement or Co-Lender Agreement) of the foregoing parties (collectively, the "Purchase Option Holders") shall each have the option to purchase such Specially Serviced Mortgage Loan at a cash price that is at least equal to the Purchase Price. In addition, if such Specially Serviced Mortgage Loan is part of a foreclosure sale Loan Group as to which there is a Pari Passu Companion Loan that has been securitized, the Special Servicer shall also send a copy of the notice described above to the parties under the related pooling and servicing agreement that have the equivalent rights as the Purchase Option Holders under this Agreement. (c) If none of the Purchase Option Holders exercises its option to purchase any Specially Serviced Mortgage Loan as described in subsection (b) above, then any single Holder or similar proceeding, and that any group of Certificateholders evidencing a majority of the sale Voting Rights allocated to the Controlling Class (other than an assignee whose purchase of such Specially Serviced Mortgage Loan under would violate the circumstances provided terms of any related mezzanine loan intercreditor agreement or co-lender agreement) will also have the option to purchase that Specially Serviced Mortgage Loan at a price equal to the fair value of such Specially Serviced Mortgage Loan (the "FV Price"). The Holders of a majority of the Voting Rights allocated to the Controlling Class will have the exclusive option to purchase such Specially Serviced Mortgage Loan at the FV Price for a period of 60 days after receipt of notice from the Special Servicer pursuant to Section 3.19(b) above. After the expiration of such 60-day period, the Special Servicer shall have the exclusive right to exercise the option to purchase such Specially Serviced Mortgage Loan at the FV Price for a 30-day period. If such Specially Serviced Mortgage Loan has not been purchased by the Special Servicer during such 30-day period, the option to purchase such Specially Serviced Mortgage Loan at its FV Price may be exercised by either the Special Servicer or the Holders of Certificates representing a majority of the Voting Rights allocated to the Controlling Class, except that prior to any purchase by the Special Servicer, the Special Servicer shall give 15 days prior written notice of its intent to exercise such option to such Certificateholders and such Certificateholders shall have a right of first refusal to purchase such Specially Serviced Mortgage Loan during such 15-day period. Upon receipt of a request from any Purchase Option Holder to determine the FV Price in this Section 3.18(b) or in Section 3.18(c) contemplation of its intention to exercise its option to purchase a Specially Serviced Mortgage Loan at a price that is in accordance with below the Servicing StandardPurchase Price, the Special Servicer shall promptly so notify obtain an MAI appraisal of the related Mortgaged Property by an Independent Appraiser (unless such an appraisal was obtained within one year of such date and the Special Servicer has no knowledge of any circumstances that would materially affect the validity of such appraisal). Promptly after obtaining such appraisal, the Special Servicer shall determine the FV Price in writing accordance with the Servicing Standard and the provisions of subsection (j) below. Promptly after determining the FV Price, the Special Servicer shall report such FV Price to the Trustee and each Purchase Option Holder. With respect to any Serviced Loan Group, the Master ServicerPurchase Option Holders will only have the right to purchase the related Loan Group Trust Mortgage Loan and with respect to 111 Eighth Avenue Loan Group, will not have the right to purchase the 100 Xxxxxx Xxxxxx Non-Pooled Trust Loan. With respect to each such Specxxxxx Xxxxxxxx Xxrtgage Loan that is part of a Loan Group as to which there is a Pari Passu Companion Loan that has been securitized, the Special Servicer shall also send a copy of the notice containing the FV Price described above to the parties under the related pooling and servicing agreement that have the equivalent rights as the Purchase Option Holders under this Agreement. (d) With respect to each of the Non-Serviced Trust Loans: (i) in the case of the 237 Park Avenue Trust Loan, Wells Fargo Tower Trust Loan and the 0000 X Xxxxxx Xxxxx Xxxx, xxx Xxxcial Servicer shall follow all of the provisions of this Section 3.19, except that the Special Servicer shall not be required to determine the FV Price but rather shall use the "FV Price" determined by the GCCFC C2 Special Servicer under the GCCFC C2 PSA; and (ii) in the case of the Water Tower Place Trust Loan, the DDR Portfolio Loan. and the 5 Houston Center Trust Loan, this Section 3.19 shall not be applicable, and any rights of any Persons to exercise its option to purchase such Loan Group Trust Mortgage Loans shall be determined in accordance with the terms of the related Lead PSA and the related Co-Lender Agreement by the parties specified therein (and the Trust shall sell such Loan Group Trust Mortgage Loan in compliance with such terms). Any proceeds from such the sale of the Water Tower Place Trust Loan, the DDR Portfolio Loan, or the 5 Houston Center Trust Loan pursuant to the exercise of such option shall be treated for purposes of this Agreement in the same manner as funds received in connection with the sale of any Serviced Loan Group Trust Mortgage Loan in accordance with the provisions of this Section 3.19. (e) Any Purchase Option Holder shall be required to purchase the subject Specially Serviced Mortgage Loan within ten Business Days of notice of its intent to exercise its purchase option. (f) If none of the Purchase Option Holders have exercised their option to purchase a Specially Serviced Mortgage Loan under this Section 3.19 prior to the expiration of 120 days from the Special Servicer's most recent determination of the FV Price and thereafter receives a request from a Purchase Option Holder for an updated FV Price, or the Special Servicer receives notice that a Purchase Option Holder intends to exercise its purchase option, the Special Servicer shall be required to recalculate the FV Price (with no presumption that such FV Price should be reduced on account of the lack of a prior purchase of such Specially Serviced Mortgage Loan). In connection with such recalculation, the Special Servicer may obtain an updated Appraisal if it determines that market conditions or conditions at the mortgaged property warrant an updated Appraisal. In addition, the Special Servicer shall recalculate the FV Price of any Mortgage Loan if there has been a material change in circumstances of which the Special Servicer is aware or the Special Servicer has received new information, either of which has a material effect on the fair value. (g) If the party exercising the purchase option at the FV Price for any Specially Serviced Mortgage Loan is the Special Servicer or an Affiliate thereof, the Trustee shall, within 10 days after receipt of such notice, notify all shall verify that the Certificateholders of the Controlling Class. The Majority Certificateholder of the Controlling Class may FV Price is at its option purchase from the Trust, at a price least equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership fair value of such Mortgage Loan. In connection determining whether the FV Price is at least equal to the fair value of such Mortgage Loan the Trustee will be permitted to conclusively rely on an appraisal obtained by the Trustee from an Independent Appraiser at the time it is required to verify the FV Price and/or the opinion of an Independent expert in real estate matters (including the Master Servicer) with at least 5 years' experience in valuing or investing in loans, similar to such Mortgage Loan, that has been selected by the Trustee with reasonable care at the expense of the Trust Fund. (h) Any Purchase Option Holder may, once such option is exercisable, assign its purchase option with respect to any Specially Serviced Mortgage Loan to a third party other than another Purchase Option Holder or any Person whose purchase of such purchaseSpecially Serviced Mortgage Loan would violate any restrictions contained in any mezzanine intercreditor agreement or any Co-Lender Agreement and upon such assignment such third party shall have all of the rights that had been granted to the Purchase Option Holder hereunder in respect of the purchase option. Such assignment shall only be effective upon written notice (together with a copy of the executed assignment and assumption agreement) being delivered to the Trustee, the Master Servicer and the Special Servicer. (i) In determining the FV Price for any Specially Serviced Mortgage Loan, the Special Servicer shall deliver may take into account, among other factors, the related Servicing File to the Certificateholder(s) effecting such purchase (results of any appraisal or any designee thereof). (c) If the Majority Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, updated appraisal that it or the Master Servicer may at its option purchase such Mortgage Loan from the Trust, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the Trust. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the Trust, the Special Servicer shall accept the highest cash offer received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted have obtained in accordance with this Agreement within the preceding 12-month period or, prior twelve months; the opinions on fair value expressed by Independent investors in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition mortgage loans comparable to the results of any Appraisal, updated Appraisal or narrative Appraisal that it may have obtained pursuant to this Agreement within the prior 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such subject Specially Serviced Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, Loan; the period and amount of any delinquency on the affected subject Specially Serviced Mortgage Loan, ; the occupancy level and physical condition of the related Mortgaged Property or REO Property, ; the state of the local economy economy; and the obligation to dispose of any REO Property within expected recoveries from the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted subject Specially Serviced Mortgage Loan if the Special Servicer were to pursue a workout or REO Property unless foreclosure strategy instead of selling such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed to a fair pricePurchase Option Holder. (fj) Subject The purchase option for any Specially Serviced Mortgage Loan pursuant to Sections 3.18(athis Section 3.19 shall terminate, and shall not be exercisable as set forth in subsections (b) through 3.18(eand (c) aboveabove (or if exercised, but the purchase of the subject Mortgage Loan has not yet occurred, shall terminate and be of no further force or effect) if and when (i) such Specially Serviced Mortgage Loan has become a Corrected Loan, (ii) the related Mortgaged Property has become an REO Property or (iii) a Final Recovery Determination has been made with respect to such Specially Serviced Mortgage Loan. (k) Until such time as a Specially Serviced Mortgage Loan is purchased by a Purchase Option Holder in accordance with this Section 3.19, the Special Servicer shall act on behalf continue to pursue all of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 resolution options available to such sales or evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 or the Trustee shall have any liability to any Certificateholder it with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (g) Any sale of a Defaulted Specially Serviced Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard. (l) Notwithstanding anything to the contrary herein, that rejection the holders of such offer would be the related Companion Loan (and, in the best interests case of the Certificateholders111 Eighth Avenue Loan Group, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliateholder of the 111 Eighth Avenue Non-Pxxxxx Xxxxx Xxxx and/or the holder of the 111 Eixxxx Xxxxxx Xxxxxdinate Companion Loan) if it determines, shall be entitled to purcxxxx xxx xxxxxxx Loan Group Trust Mortgage Loans in accordance with the Servicing Standard, that acceptance of such offer would be terms and conditions set forth in the best interests related Co-Lender Agreement, even after it has been purchased out of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely Trust Fund pursuant to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable)this Section 3.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Greenwich Capital Commercial Funding Corp. Commercial Mortgage Pass-Through Certificates Series 2004-Gg1)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 and 9.01. (b) [If the Special Servicer has determined, in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standard, the Special Servicer shall promptly so notify in writing the Trustee and Trustee, the Master ServicerServicer and each Rating Agency, and the Trustee shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling Class. The Majority Certificateholder of the Controlling Class may at its option purchase from the Trust, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof). (c) If the Majority Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option purchase such Mortgage Loan from the Trust, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell or otherwise realize upon any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the Trust. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the Trust, the Special Servicer shall accept the highest cash offer received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from the Special Servicer, an Interested independent contractor hired by the Special Servicer or an Affiliate of such Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than the Special Servicer, an Interested Person independent contractor hired by the Special Servicer or an Affiliate of such Person, constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse to the Trust imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 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. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Nationslink Funding Corp 1999-LTL-1 Commer Loan Pas THR Cer)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.01. (b) [If the Special Servicer has determined, determined in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and whereupon the Trustee shall, within 10 days after receipt of such notice, notify all each Controlling Class Certificateholder. Any Controlling Class Certificateholder or group of Controlling Class Certificateholders may, at its or their option (with preference among such Holders being given to the Certificateholders Holder or group of Holders of Certificates representing the greatest Percentage Interest in the Controlling Class. The Majority Certificateholder ), during the 10-Business Day period following receipt of such notice by the Controlling Class may at its option Certificateholders, purchase any such Defaulted Mortgage Loan from the TrustTrust Fund, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph subsection (b) shall be deposited into the Certificate Custodial Account, ; and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the purchasing Controlling Class Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the such Controlling Class Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the purchasing Controlling Class Certificateholder(s) effecting such purchase (or any designee thereof). (c) If the Majority Certificateholder of the no Controlling Class Certificateholder has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days 10 Business Days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Master Servicer or the Special Servicer or, subject (with preference given to the Special Servicer's prior rights in such regard, the Master Servicer ) may at its option option, during the immediately following 10-Business Day period, purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph subsection (c) shall be deposited into the Certificate Custodial Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of 129 transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer Servicer, at any time, may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustCertificateholders (as a collective whole). Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 10 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the TrustSubject to Sections 3.18(h) and 6.11, the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Subject to Sections 3.18(h) and 6.11, the Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneouslycontemporaneously or subsequently, the highest) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), then (subject to Section 6.11 ) the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' Depositor prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer bid is from an Interested Person, by the Trustee. In determining whether any offer bid received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall be entitled to rely on the most recent Appraisal or updated Appraisal appraisal in the related Servicing File conducted in accordance with this Agreement within the preceding 12-month period (or, in the absence of any such Appraisalappraisal or if there has been a material change at the subject property since any such appraisal, on a narrative new appraisal prepared by a Qualified Appraiser, retained to be obtained by the Special Servicer. Such appraiser Servicer (the cost of which shall be covered by, and be reimbursable as, a Servicing Advance)). The appraiser conducting any such new appraisal shall be an Independent Appraiser selected by the Special Servicer if neither the Special Servicer nor 130 any Affiliate thereof is making an offer bidding with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if either the Special Servicer or an any Affiliate thereof is making such an offerso bidding. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When Where any Interested Person is among those making an offer bidding with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers bids be submitted to it (and, if the Special Servicer or any Affiliate thereof is bidding, to the Trustee) in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered bid amount. In determining whether any offer bid from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition to the results of any Appraisal, appraisal or updated Appraisal or narrative Appraisal appraisal that it or the Master Servicer may have obtained pursuant to in accordance with this Agreement within the prior 12 twelve months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters Independent Appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). The Purchase Price for any such Mortgage Loan or REO Property shall in all cases be deemed a fair price. Notwithstanding the other provisions of this Section 3.18, no cash offer bid from any Interested Person the Special Servicer or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer bid is the highest cash offer bid received and at least two additional offers independent bids (not including the offers bid of Interested Persons the Special Servicer or any Affiliates thereofAffiliate) have been received. In the event the bid of the Special Servicer or any Affiliate thereof is the only bid received from Independent third parties reflecting prices less than or is the related Purchase Pricehigher of only two bids received, then additional bids shall be solicited. The Purchase Price If an additional bid or bids, as the case may be, are received and the original bid of the Special Servicer or any Affiliate thereof is the highest of all cash bids received, then the bid of the Special Servicer or such Affiliate shall be accepted, provided that the Trustee has otherwise determined, as provided above in this Section 3.18(e), that such bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property. Any bid by the Special Servicer shall be unconditional; and, if accepted, the Defaulted Mortgage Loan or REO Property shall be transferred to the Special Servicer without recourse, representation or warranty other than customary representations as to title given in all cases be deemed connection with the sale of a fair pricemortgage loan or real property. (f) Subject to Sections 3.18(a) through 3.18(e) above, and further subject to Section 6.11, the Special Servicer shall act on behalf of the Trustee in negotiating with independent third parties and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerorsbidders, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales or evaluating offers bids, without the obligation to deposit such amounts into the Certificate Custodial Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto and any customary closing matters)Trust, and if such sale is consummated in accordance with the terms of this Agreement, none of neither the Special Servicer, the Master Servicer or nor the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (g) Any sale of a Defaulted Mortgage Loan or any REO Property pursuant to this Section 3.18 shall be for cash only (unless, as evidenced by an Opinion and shall be on a servicing released basis. The provisions of Counsel, changes this Section 3.18 shall in no way limit the REMIC Provisions made subsequent obligations of the Special Servicer to proceed with respect to any Specially Serviced Mortgage Loan in accordance with Section 3.09 at the Startup Day allow a same time that such Mortgage Loan may be offered or eligible for sale for other consideration)in accordance with this Section 3.18. (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer bid if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer bid would be in the best interests of the CertificateholdersCertificateholders (as a collective whole). In addition, and the Special Servicer may may, subject to Section 6.11, accept a lower cash offer bid (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer bid would be in the best interests of the Certificateholders (as a collective whole) (for example, if the prospective buyer making the lower offer bid is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer bid are more favorable).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass-Through Certificates Series 2000-C4)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 and 9.01. (b) [If the Special Servicer has determined, in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standard, the Special Servicer shall promptly so notify in writing the Trustee and Trustee, the Master Servicer, the Certificate Insurer and each Rating Agency, and the Trustee shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling Class. The Majority Certificateholder of the Controlling Class may at its option purchase from the Trust, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an 116 Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably reasonable necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof). (c) If the Majority Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option purchase such Mortgage Loan from the Trust, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell or otherwise realize upon any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustTrust and the Certificate Insurer as potential or current subrogee of the Class A Certificateholders. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the TrustTrust and the Certificate Insurer as potential or current subrogee of the Class A Certificateholders, the Special Servicer shall accept the highest cash offer received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer 117 reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee Trustee, the Certificate Insurer and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from the Special Servicer, an Interested independent contractor hired by the Special Servicer, or an Affiliate of such Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than the Special Servicer, an Interested Person independent contractor hired by the Special Servicer or an Affiliate of such Person, constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price 118 shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse to the Trust imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 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. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders and the Certificate Insurer as potential or current subrogee of the Class A Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders and the Certificate Insurer as potential or current subrogee of the Class A Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable); provided, however, that the Special Servicer shall not, without the prior written consent of the Directing Certificateholder, reject an offer for an amount greater than or equal to the Purchase Price in favor of an offer for an amount less than the Purchase Price if payable on substantially the same terms, including without limitation time of payment.

Appears in 1 contract

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

Sale of Mortgage Loans and REO Properties. (a) The parties hereto may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 and 9.01. (b) [If the Special Servicer has determined, in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided described in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standard, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling Class. The Majority Certificateholder of the Controlling Class may at its option purchase from the TrustTrust Fund, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof). (c) If the Majority Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustTrust Fund. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the TrustTrust Fund, the Special Servicer shall accept the highest cash offer received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor the Fiscal Agent, each in its respective individual capacity, nor any of its their respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is not making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust Fund (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 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. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Capital Funding Inc)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.01. (b) [If Subject to Section 2.03(a), if the Special Servicer has determined, determined in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee Trustee, following its receipt of such notice, shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling ClassMajority Subordinate Certificateholder. The Majority Subordinate Certificateholder of the Controlling Class may at its option purchase from the TrustTrust Fund, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof)Majority Subordinate Certificateholder. (c) If the Majority Subordinate Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 30 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Master Servicer or the Special Servicer or, subject (with preference given to the Special Servicer's prior rights in such regard, the Master Servicer ) may at its option purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section Sections 3.18(b) or Section and 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustTrust Fund. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the Trust, the Special Servicer shall accept the highest cash offer received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 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. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).than

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only (i) on the terms and subject to the conditions set forth in this Section 3.18 or 3.18, (ii) as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.019.01 of this Agreement, (iii) in the case of the UBS Warburg Building Mortgage Loan, as set forth in Section 3.03 of the UBS Warburg Building Co-Lender and Servicing Agreement, and, (iv) in the case of a Mortgage Loan with a related mezzanine loan, in connection with a Loan default as set forth in the related intercreditor agreement. (b) [If the Special Servicer has determined, in its good faith and reasonable judgment, that Within five Business Days after any Defaulted Mortgage Loan will has become the subject of a foreclosure sale or similar proceeding, and that the sale of such Specially Serviced Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing StandardLoan, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee shall, within 10 days after receipt give notice of such notice, notify all the Certificateholders event to each holder of a Certificate of the Controlling Class. The Majority Certificateholder , the holder of the Controlling Class may at its option purchase from UBS Warburg Building Companion Loan (if such Mortgage Loan is the Trust, at a price equal to the applicable Purchase Price, any such Defaulted UBS Warburg Building Mortgage Loan. The Purchase Price for any ), the related Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, Seller and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer (the foregoing parties, together with the Special Servicer, including any assignees thereof, the "Purchase Option Holders") and to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase Trustee. Each Purchase Option Holder (or any designee thereof) other than the related Mortgage File, and Loan Seller) shall execute and deliver have the option to purchase such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof). (c) If the Majority Certificateholder of the Controlling Class has not purchased any Defaulted Specially Serviced Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option purchase such Mortgage Loan from the Trust, at a cash price that is at least equal to the Purchase Price. The Special Servicer shall accept the first offer by a Purchase Option Holder (other than the related Mortgage Loan Seller) that is at least equal to the Purchase Price. (c) If none of the Purchase Option Holders (exclusive of the related Mortgage Loan Seller) exercises its option to purchase any Specially Serviced Mortgage Loan as described in subsection (b) above, then each Purchase Option Holder (including the related Mortgage Loan Seller) will also have the option to purchase that Specially Serviced Mortgage Loan at a price equal to the fair value of such Specially Serviced Mortgage Loan (the "FV Price"). Upon receipt of a request from any Purchase Option Holder to determine the FV Price in contemplation of its intention to exercise its option to purchase a Specially Serviced Mortgage Loan at a price that is below the Purchase Price, the Special Servicer shall promptly obtain an MAI appraisal of the related Mortgaged Property by an Independent Appraiser (unless such an appraisal was obtained within one year of such date and the Special Servicer has no knowledge of any circumstances that would materially affect the validity of such appraisal). Promptly after obtaining such appraisal, the Special Servicer shall determine the FV Price in accordance with the Servicing Standard and the provisions of subsection (j) below. Promptly after determining the FV Price, the Special Servicer shall report such FV Price to the Trustee and each Purchase Option Holder. (d) In the event that a Purchase Option Holder notifies the Special Servicer that it is willing to purchase any Specially Serviced Mortgage Loan (the party submitting such bid, the "Initial Bidder") at a price equal to or above the FV Price (a "FV Bid"), the Special Servicer shall notify all other Purchase Option Holders that it has received such FV Bid (without disclosing the amount of such FV Bid). All other Purchase Option Holders may submit competing bids within the ten Business Day period following such notice. If the Special Servicer receives a competing bid within such ten Business Day period, the Special Servicer shall notify the Initial Bidder of such competing bid (without disclosing the amount of such bid) and the Initial Bidder will have five Business Days to increase its initial bid. At the conclusion of the above-described bidding process, the Special Servicer shall accept the highest bid received from any Purchase Option Holder that is at least equal to the FV Price. (e) If the Special Servicer accepts the bid of any Purchase Option Holder, such Purchase Option Holder shall be required to purchase the subject Specially Serviced Mortgage Loan within ten Business Days of receipt of notice of such acceptance. (f) If the Special Servicer has not accepted a FV Bid prior to the expiration of 120 days from its determination of the FV Price and thereafter receives a FV Bid or a request from a Purchase Option Holder for any an updated FV Price, the Special Servicer shall within 45 days recalculate the FV Price (with no presumption that such FV Price should be reduced on account of the lack of an FV Bid) and repeat the notice and bidding procedure provided in subsection (d) above until the purchase option terminates under subsection (k) below. (g) With respect to the right of the related Mortgage Loan Seller, the purchase option of such Mortgage Loan purchased under this paragraph Seller will expire upon the earliest of (ci) shall be deposited into 90 Business Days following the Certificate Accountdate on which it received notice pursuant to subsection (b) above that the subject Mortgage Loan has become a Specially Serviced Mortgage Loan, unless the related Mortgage Loan Seller has provided notice to the Special Servicer and the Trustee to extend the period during which it may exercise its option, (ii) such shorter period as the related Mortgage Loan Seller has indicated in a written notice to the Special Servicer and the Trustee, upon receipt (iii) the Special Servicer's acceptance of a FV Bid by any of the Purchase Option Holders, and (iv) the date on which the purchase option terminates for the other Purchase Option Holders as provided in subsection (k) below. (h) If the party exercising the purchase option at the FV Price for any Specially Serviced Mortgage Loan is the Special Servicer or an Affiliate thereof, the Trustee shall verify that the FV Price is at least equal to the fair value of such Mortgage Loan. In determining whether the FV Price is at least equal to the fair value of such Mortgage Loan the Trustee will be permitted to conclusively rely on an appraisal obtained by the Trustee from an Independent Appraiser at the time it is required to verify the FV Price and/or the opinion of an Officer's Certificate from Independent expert in real estate matters (including the Master Servicer) with at least 5 years' experience in valuing or investing in loans, similar to such Mortgage Loan, that has been selected by the Trustee with reasonable care at the expense of the Trust Fund. (i) Any Purchase Option Holder may, once such option is exercisable, assign its purchase option with respect to any Specially Serviced Mortgage Loan to a third party other than another Purchase Option Holder and upon such assignment such third party shall have all of the rights that had been granted to the Purchase Option Holder hereunder in respect of the purchase option. Such assignment shall only be effective upon notice (together with a copy of the executed assignment and assumption agreement) being delivered to the Trustee, the Master Servicer and the Special Servicer. (j) In determining the FV Price for any Specially Serviced Mortgage Loan, the Special Servicer shall take into account, among other factors, the results of any appraisal or updated appraisal that it or the Master Servicer may have obtained in accordance with this Agreement within the prior twelve months; the opinions on fair value expressed by Independent investors in mortgage loans comparable to the effect that subject Specially Serviced Mortgage Loan; the period and amount of any delinquency on the subject Specially Serviced Mortgage Loan; the physical condition of the related Mortgaged Property; the state of the local economy; and the expected recoveries from the subject Specially Serviced Mortgage Loan if the Special Servicer were to pursue a workout or foreclosure strategy instead of selling such deposit Mortgage Loan to a Purchase Option Holder. (k) The purchase option for any Specially Serviced Mortgage Loan pursuant to this Section 3.18 shall terminate, and shall not be exercisable as set forth in subsections (b) and (c) above (or if exercised, but the purchase of the subject Mortgage Loan has not yet occurred, shall terminate and be of no further force or effect) if (i) the Special Servicer has accepted a FV Bid, (ii) if such Specially Serviced Mortgage Loan has become a Corrected Mortgage Loan, (iii) the related Mortgaged Property has become an REO Property or (iv) a Final Recovery Determination has been mademade with respect to such Specially Serviced Mortgage Loan. (l) Until such time as a FV Bid is accepted, the Special Servicer shall release or cause continue to be released pursue all of the other resolution options available to it with respect to the Specially Serviced Mortgage Loan in accordance with the Servicing Standard. (m) Notwithstanding anything to the contrary herein, the holders of the UBS Warburg Building Companion Loan shall be entitled to purchase the UBS Warburg Building Mortgage Loan in accordance with the terms and conditions set forth in Section 3.03 of the UBS Warburg Building Co- Lender and Servicing Agreement. The Master Servicer or the Special Servicer, as applicable, shall determine the related Mortgage File, price to be paid in accordance with the terms of the UBS Warburg Building Co-Lender and shall execute and deliver such instruments of transfer or assignment, Servicing Agreement in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase and shall provide such notices to the holders of the UBS Warburg Building Companion Loan as are required by the Master Servicer, the Special Servicer shall deliver the related UBS Warburg Building Co-Lender and Servicing File to the Master ServicerAgreement in connection with such holders' purchase right. (dn) The Special Servicer may offer to sell any Defaulted Any purchase of the UBS Warburg Building Mortgage Loan not otherwise purchased pursuant to this Section 3.18(b) or Section 3.18(c) above3.18 will remain subject to the cure and purchase rights of, if and when the Special Servicer determines, consistent with holder of the Servicing Standard, that such a sale would be UBS Warburg Building Companion Loan as set forth in the best economic interests UBS Warburg Building Co-Lender and Servicing Agreement and, any holder of the Trust. Such offer shall be made a related mezzanine loan in connection with a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be Loan default as set forth in the best economic interests of the Trust, the Special Servicer shall accept the highest cash offer received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. related intercreditor agreement. (o) The Special Servicer shall use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Subject to Sections 6.11 and 6.11A, the Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneouslycontemporaneously or subsequently, the highest) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), then (subject to Section 6.11 or 6.11A, as applicable) the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. . (p) The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' Depositor prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). 3.18. (q) No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (er) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, Property for purposes of this Section 3.18(d)3.18, shall be determined by the Special Servicer or, if such cash offer bid is from an Interested Person, by the Trustee. In determining whether any offer bid received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall be entitled to rely on the most recent Appraisal or updated Appraisal appraisal in the related Servicing File conducted in accordance with this Agreement within the preceding 12-month period (or, in the absence of any such Appraisalappraisal or if there has been a material change at the subject property since any such appraisal, on a narrative new appraisal prepared by a Qualified Appraiser, retained to be obtained by the Special Servicer. Such appraiser Servicer (the cost of which shall be covered by, and be reimbursable as, a Servicing Advance)). The appraiser conducting any such new appraisal shall be an Independent Appraiser selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer bidding with respect to a Defaulted Mortgage Loan or an REO Property and shall be selected by the Trustee if either the Special Servicer or an any Affiliate thereof is making such an offerso bidding. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When Where any Interested Person is among those making an offer bidding with respect to a Defaulted Mortgage Loan or an REO Property, the Special Servicer shall require that all offers bids be submitted to it (and, if the Special Servicer or any Affiliate thereof is bidding, to the Trustee) in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered bid amount. In determining whether any offer bid from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition to the results of any Appraisal, appraisal or updated Appraisal or narrative Appraisal appraisal that it or the Master Servicer may have obtained pursuant to in -148- accordance with this Agreement within the prior 12 twelve months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters Independent Appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or subject REO Property, the state of the local economy and the obligation to dispose of any the subject REO Property within the time period specified in Section 3.16(a). The Purchase Price for any REO Property shall in all cases be deemed a fair price. Notwithstanding the other provisions of this Section 3.18, no cash offer bid from any Interested Person the Special Servicer or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer bid is the highest cash offer bid received and at least two additional offers independent bids (not including the offers bid of Interested Persons the Special Servicer or any Affiliates thereofAffiliate) have been received. In the event the bid of the Special Servicer or any Affiliate thereof is the only bid received from Independent third parties reflecting prices less than or is the related Purchase Pricehigher of only two bids received, then additional bids shall be solicited. The Purchase Price If an additional bid or bids, as the case may be, are received and the original bid of the Special Servicer or any Affiliate thereof is the highest of all cash bids received, then the bid of the Special Servicer or such Affiliate shall be accepted, provided that the Trustee has otherwise determined, as provided above in this Section 3.18(r), that such bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property. Any bid by the Special Servicer shall be unconditional; and, if accepted, the REO Property shall be transferred to the Special Servicer without recourse, representation or warranty other than customary representations as to title given in all cases be deemed connection with the sale of a fair pricereal property. (fs) Subject to Sections 3.18(a) through 3.18(e3.18(r) above, and further subject to Section 6.11 and Section 6.11A, the Special Servicer shall act on behalf of the Trustee in negotiating with independent third parties seeking to purchase an REO Property and taking any other action necessary or appropriate in connection with the sale of any Defaulted Specially Serviced Mortgage Loan or REO PropertyProperty pursuant to this Section 3.18, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerorsbidders for any REO Property, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales to, or evaluating offers bids for, such REO Property without obligation to deposit such amounts into the Certificate Pool Custodial Account. Any sale of a Defaulted Specially Serviced Mortgage Loan or any an REO Property pursuant to this Section 3.18 shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto and any customary closing matters)Trust, and if such sale is consummated in accordance with the terms of this Agreement, none of neither the Special Servicer, the Master Servicer or nor the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (gt) Any sale of a Defaulted Specially Serviced Mortgage Loan or any an REO Property pursuant to this Section 3.18 shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow and shall be on a sale for other consideration)servicing released basis. (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Structured Asset Securities Corp)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.01. (b) [If Subject to Section 2.03(a), if the Special Servicer has determined, determined in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee Trustee, following its receipt of such notice, shall, within 10 days after receipt of such notice, notify all deliver a copy of such notice to the Certificateholders of the Controlling ClassMajority Subordinate Certificateholder. The Majority Subordinate Certificateholder of the Controlling Class may at its option purchase from the TrustTrust Fund, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof)Majority Subordinate Certificateholder. (c) If the Majority Subordinate Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 30 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Special Master Servicer or, subject to or the Special Servicer's prior rights in such regard, the Master Servicer may at its option purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section Sections 3.18(b) or Section and 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustTrust Fund. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 10 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the TrustSubject to Section 3.18(h), the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer bid determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard3.09. The Special Servicer shall use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneously, subject to Section 3.18(h), the highest) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, subject to Section 3.18(h), shall accept the highest outstanding cash offerbid, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five three Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee(except as otherwise provided below in this Section 3.18(e)). In determining whether any offer bid received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee Special Servicer shall be supplied with and shall may rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared at the expense of the Trust Fund by a Qualified an Independent Appraiser, retained by the Special Servicer. (The Special Servicer may rely on a certification of any bidder to the effect that such bidder is not an Interested Person.) Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer not bidding with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee Master Servicer if the Special Servicer or an Affiliate thereof is making such an offerbidding. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When Where any Interested Person is among those making an offer bidding with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers bids be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered bid amount. In determining whether any offer bid from a Person other than an Interested Person or from an Interested Person other than the Special Servicer constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative Appraisal appraisal described above and any appraisal that it may have obtained pursuant to this Agreement within the prior 12 monthsSection 3.09(a)), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). The Purchase Price for any such Mortgage Loan or REO Property shall in all cases be deemed a fair price. Notwithstanding the other provisions of this Section 3.183.18 (but excluding a purchase pursuant to Section 3.18(c)), no cash offer bid from any Interested Person the Master Servicer, Special Servicer or any Affiliate of their Affiliates thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer bid is the highest cash offer bid received and at least two additional offers independent bids (not including the offers bid of Interested Persons the Master Servicer, the Special Servicer or any Affiliates thereofAffiliate of either) have been received. In the event the bid of the Special Servicer or any Affiliate is the only bid received from Independent third parties reflecting prices less than or is the related Purchase Pricehigher of only two bids received, then additional bids shall be solicited. The Purchase Price for If an additional bid or bids are received and the original bid of the Special Servicer or any Defaulted Mortgage Loan Affiliate is the highest of all bids received, then the bid of the Special Servicer or REO Property such Affiliate shall in all cases be deemed to constitute a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerorsbidders, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales or evaluating offers bids without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and final, without recourse to the Trustee or the Trust Fund (except such recourse imposed by those other than limited warranty of title and condition) and without representations and warranties typically given in such transactions, any prorations applied thereto and any customary closing matters)warranties, and if such sale is consummated in accordance with the terms of this Agreement, none of neither the Special Servicer, the Master Servicer or nor the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, unless changes in the REMIC Provisions or authoritative interpretations thereof made or issued subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding The Special Servicer shall not be obligated by any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated 3.18 to accept the highest cash offer bid if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer bid would be in the best interests of the Certificateholders. In addition, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) bid if it determines, in accordance with the Servicing Standard, that acceptance of such offer bid would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer bid is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer bid are more favorable).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a), 2.02(b) and 9.01. (b) [If Subject to Sections 2.03(a) and 2.02(b), if the Special Servicer has determined, determined in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee and the Master ServicerServicer in writing, and the Trustee shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling ClassMajority Subordinate Certificateholder. The Majority Subordinate Certificateholder of the Controlling Class may at its option purchase from the TrustTrust Fund, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of a Request for Release in the form of Exhibit D-1 hereto, and an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder ownership of such Mortgage Loan. In connection with any such purchase, purchase (i) the Special Servicer shall deliver the related Servicing File to, and (ii) the Trustee shall assign its rights with respect to such Mortgage Loan to, the Certificateholder(s) effecting such purchase (or any designee thereof)Majority Subordinate Certificateholder. (c) If the Majority Subordinate Certificateholder of the Controlling Class has not purchased agreed to purchase any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 30 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Master Servicer or the Special Servicer or, subject (with preference given to the Special Servicer's prior rights in such regard, the Master Servicer ) may at its option purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section Sections 3.18(b) or Section and 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustTrust Fund. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 10 days. The Majority Subordinate Certificateholder, the Master Servicer and the Special Servicer may offer to purchase any such Specially Serviced Mortgage Loan or REO Property. Unless the Special Servicer determines that acceptance of any offer bid would not be in the best economic interests of the TrustCertificateholders (as a collective whole) and subject to any rights that the Controlling Class Representative may have to object if the winning bid is not at least equal to the applicable Purchase Price, the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer bid determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and3.09. Subject to Section 6.11, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneouslycontemporaneously or subsequently, the highest, provided that the Special Servicer is not obligated to the first bidder) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), then subject to Section 6.11, the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five three Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee(except as otherwise provided below in this Section 3.18(e)). In determining whether any offer bid received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee Special Servicer shall be supplied with and shall may rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared (to be paid for by the Master Servicer as a Qualified Servicing Advance) by an Independent Appraiser, retained by the Special Servicer. The Special Servicer may rely on a certification of any bidder to the effect that such bidder is not an Interested Person. Such appraiser shall be selected by (i) the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer not bidding with respect to a Defaulted Mortgage Loan or REO Property, (ii) the Master Servicer if the Special Servicer is bidding and (iii) the Trustee if the Master Servicer and the Special Servicer are the same Person. The Master Servicer shall require not bid with respect to a Defaulted Mortgage Loan or REO Property if the Special Servicer has informed it that all offers be submitted in writing and be accompanied by the Special Servicer intends to submit a refundable deposit of cash in an amount equal to 5% of the offered amountbid. In determining whether any offer bid from a Person other than an Interested Person or from an Interested Person other than the Special Servicer constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative Appraisal appraisal described above and any appraisal that it may have obtained pursuant to this Agreement within the prior 12 monthsSection 3.09(a)), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). The Purchase Price for any such Mortgage Loan or REO Property shall in all cases be deemed a fair price. Notwithstanding the other provisions of this Section 3.183.18 (but excluding a purchase pursuant to Section 3.18(c)), no cash offer bid from any Interested Person the Master Servicer, Special Servicer or any Affiliate thereof in an amount less than the related Purchase Price of their Affiliates shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer bid is the highest cash offer bid received and at least two additional offers independent bids (not including the offers bid of Interested Persons the Master Servicer, Special Servicer or any Affiliates thereofAffiliate) have been received from Independent third parties reflecting prices less received. In the event the bid of the Special Servicer or any Affiliate (other than the related Purchase PriceControlling Class) is the only bid received or is the higher of only two bids received, then additional bids shall be solicited. The Purchase Price for If an additional bid or bids are received and the original bid of the Special Servicer or any Defaulted Mortgage Loan Affiliate is the highest of all bids received, then the bid of the Special Servicer or REO Property such Affiliate shall in all cases be deemed to constitute a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) aboveabove and Section 6.11, the Special Servicer shall act on behalf of the Trustee for the benefit of the Trust Fund in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, and the collection of all amounts payable in connection therewith. In connection therewiththerewith (other than in connection with a purchase by the Majority Subordinate Certificateholder), the Special Servicer may charge prospective offerorsbidders, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales or evaluating offers bids without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and final, without recourse to the Trustee or the Trust (except such recourse imposed by those Fund and without representations and warranties typically given in such transactionsof title and condition, any prorations applied thereto and any customary closing matters)unless liability for breach thereof is limited to recourse against the Trust Fund, and if such sale is consummated in accordance with the terms of this Agreement, none of neither the Special Servicer, the Master Servicer or nor the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the TrusteeServicer. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, unless changes in the REMIC Provisions or authoritative interpretations thereof made or issued subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18other provision herein, the Special Servicer shall not be obligated by any of the foregoing paragraphs of this Section 3.18 to accept the highest cash offer bid if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer bid would be in the best interests of the CertificateholdersCertificateholders (as a collective whole). In addition, and subject to any rights that the Controlling Class Representative may have to object if the winning bid is not at least equal to the applicable Purchase Price, the Special Servicer may accept a lower cash offer bid (from any Person person or entity other than itself or an Affiliate) ), if it determines, in accordance with the Servicing Standard, that acceptance of such offer bid would be in the best interests of the Certificateholders (as a collective whole) (for example, if the prospective buyer making the lower offer bid is more likely to perform its obligations or the terms (other than the price) offered by the prospective buyer making the lower offer bid are more favorable). (i) Neither the Trustee, in its individual capacity, nor any of its Affiliates may bid for or purchase any Defaulted Mortgage Loan or REO Property.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass THR Cert Ser 1998-C2)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.01. (b) [If Subject to Section 2.03(a), if the Special Servicer has determined, determined in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee Trustee, following its receipt of such notice, shall, within 10 days after receipt of such notice, notify all deliver a copy of such notice to the Certificateholders of the Controlling ClassMajority Subordinate Certificateholder. The Majority Subordinate Certificateholder of the Controlling Class may at its option purchase from the TrustTrust Fund, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof)Majority Subordinate Certificateholder. (c) If the Majority Subordinate Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 30 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Master Servicer or the Special Servicer or, subject (with preference given to the Special Master Servicer's prior rights in such regard, the Master Servicer ) may at its option purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may may, subject to Section 6.11, offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section Sections 3.18(b) or Section and 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustTrust Fund. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 10 days. Unless the Special Servicer determines that acceptance of any offer bid would not be in the best economic interests of the TrustTrust Fund, the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer bid determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard3.09. The Special Servicer shall shall, subject to Section 6.11, use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneously, the highest) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five three Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given as otherwise provided below in such transactions, any prorations applied thereto 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 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. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).Section

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 and 9.01. (b) [If the Special Servicer has determined, in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standard, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling Class. The Majority Certificateholder of the Controlling Class may at its or their option purchase from the Trust, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Collection Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof). (c) If the Majority Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option purchase such Mortgage Loan from the Trust, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Collection Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the Trust. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the Trust, the Special Servicer shall accept the highest cash offer received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor the Fiscal Agent, each in its respective individual capacity, nor any of its their respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 evaluating offers without obligation to deposit such amounts into the Certificate Collection Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 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. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Capital Funding Inc)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.02, 2.03 and 9.01. (b) [If the Special Servicer has determined, in its reasonable, good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, proceedings and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) 3.18 is in accordance with the Servicing Standard, then the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee shall, within 10 five days after receipt of such notice, so notify all the Controlling Class Certificateholders. Any single Controlling Class Certificateholder or group of Controlling Class Certificateholders may, at its or their option, within ten days after receipt of such notice, purchase any Defaulted Mortgage Loan out of the Controlling Class. The Majority Certificateholder of the Controlling Class may at its option purchase from the Trust, Trust Fund at a cash price equal to the applicable Purchase Price; provided that, any if more than one Controlling Class Certificateholder or group of Controlling Class Certificateholders desire to purchase such Defaulted Mortgage Loan, preference shall be given to the Controlling Class Certificateholder or group of Controlling Class Certificateholders with the largest Percentage Interest in the Controlling Class. The Purchase Price for any Defaulted Mortgage Loan purchased under this paragraph (bSection 3.18(b) shall be deposited into the Certificate Collection Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereofto its or their designee) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the such Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage LoanLoan (subject to any rights of the applicable Designated Sub-Servicer to sub-service such Mortgage Loan as set forth under the related Designated Sub-Servicer Agreement). In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereofto its or their designee). (c) If the Majority Certificateholder none of the Controlling Class Certificateholders has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 ten days of its such Holders' having received notice in respect thereof pursuant to Section 3.18(b)] ) above, then the Trustee shall within five days of the end of such ten-day period send notice to the Master Servicer and the Special Servicer that such Mortgage Loan was not purchased by such Certificateholder(s), and either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, or the Master Servicer may (in that order of priority) may, at its option option, within ten days after receipt of such notice, purchase (or designate an Affiliate thereof to purchase) such Mortgage Loan from out of the Trust, Trust Fund at a cash price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the Trust. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the Trust, the Special Servicer shall accept the highest cash offer received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 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. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).Section

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Greenwich Capital Commercial Funding Corp)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a), 2.02(b) and 9.01. (b) [If Subject to Sections 2.03(a) and 2.02(b), if the Special Servicer has determined, determined in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee Trustee, following its receipt of such notice, shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling ClassMajority Subordinate Certificateholder. The Majority Subordinate Certificateholder of the Controlling Class may at its option purchase from the TrustTrust Fund, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof)Majority Subordinate Certificateholder. (c) If the Majority Subordinate Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 30 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Master Servicer or the Special Servicer or, subject (with preference given to the Special Servicer's prior rights in such regard, the Master Servicer ) may at its option purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section Sections 3.18(b) or Section and 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustCertificateholders. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the Trust, the Special Servicer shall accept the highest cash offer received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 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. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).than

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only (i) on the terms and subject to the conditions set forth in this Section 3.18 or 3.19, (ii) as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.019.01 of this Agreement, (iii) in the case of the Loan Groups, subject to the requirements of, and Companion Loan Noteholder rights set forth in, in the related Co-Lender Agreement, and (iv) in the case of a Mortgage Loan with a related mezzanine loan, in connection with a Loan default as set forth in the related intercreditor agreement. (b) [If Within five Business Days after any Serviced Loan has become a Specially Serviced Loan, the Special Servicer has determinedshall give notice of such event to the Trustee, in its good faith and reasonable judgment, that any Defaulted Mortgage Loan the Trustee will become the subject promptly notify each Holder of a foreclosure sale Certificate of the Controlling Class. The Special Servicer, any single Holder or similar proceeding, any group of Certificateholders evidencing a majority of the Voting Rights allocated to the Controlling Class and that the sale any assignees (other than an assignee whose purchase of such Mortgage Specially Serviced Loan would violate the terms of any related mezzanine loan intercreditor agreement or Co-Lender Agreement) of the foregoing parties (collectively, the "Purchase Option Holders") shall each have the option to purchase such Specially Serviced Loan at a cash price that is at least equal to the Purchase Price. In addition, if such Specially Serviced Loan is part of a Loan Group as to which there is a Pari Passu Companion Loan that has been securitized, the Special Servicer shall also send a copy of the notice described above to the trustee under the circumstances provided related pooling and servicing agreement. (c) If none of the Purchase Option Holders exercises its option to purchase any Specially Serviced Loan as described in this Section 3.18(bsubsection (b) above, then each Purchase Option Holder (other than an assignee whose purchase of such Specially Serviced Loan would violate the terms of any related mezzanine loan intercreditor agreement or co-lender agreement) will also have the option to purchase that Specially Serviced Loan at a price equal to the fair value of such Specially Serviced Loan (the "FV Price"). Upon receipt of a request from any Purchase Option Holder to determine the FV Price in Section 3.18(c) contemplation of its intention to exercise its option to purchase a Specially Serviced Loan at a price that is in accordance with below the Servicing StandardPurchase Price, the Special Servicer shall promptly so notify obtain an MAI appraisal of the related Mortgaged Property by an Independent Appraiser (unless such an appraisal was obtained within one year of such date and the Special Servicer has no knowledge of any circumstances that would materially affect the validity of such appraisal). Promptly after obtaining such appraisal, the Special Servicer shall determine the FV Price in writing accordance with the Servicing Standard and the provisions of subsection (j) below. Promptly after determining the FV Price, the Special Servicer shall report such FV Price to the Trustee and each Purchase Option Holder. With respect to any Serviced Loan Group, the Master ServicerPurchase Option Holders will only have the right to purchase the related Loan Group Trust Mortgage Loan. With respect to each such Specially Serviced Loan that is part of a Loan Group as to which there is a Pari Passu Companion Loan that has been securitized, the Special Servicer shall also send a copy of the notice containing the FV Price described above to the parties under the related pooling and servicing agreement that have the equivalent rights as the Purchase Option Holders under this Agreement. With respect to each of the Non-Serviced Trust Loans, this Section 3.19 shall be applicable subject to the terms of the related Lead PSA and Co-Lender Agreement, provided that any rights of any Persons to exercise its option to purchase such Loan Group Trust Mortgage Loans shall be calculated in accordance with the terms of the related Lead PSA and the Trustee shall, within 10 days after receipt related Co-Lender Agreement by the parties specified therein (and the Trust shall sell such Loan Group Trust Mortgage Loan in compliance with such terms). Any proceeds from such sale of a Non-Serviced Trust Loan pursuant to the exercise of such noticeoption shall be treated for purposes of this Agreement in the same manner as funds received in connection with the sale of any Serviced Loan Group Trust Mortgage Loan in accordance with the provisions of this Section 3.19. (d) In the event that the Special Servicer determines that it is willing, notify all or another Purchase Option Holder notifies the Certificateholders of Special Servicer that it is willing, to purchase any Specially Serviced Mortgage Loan (the Controlling Class. The Majority Certificateholder of party submitting such bid, the Controlling Class may at its option purchase from the Trust, "Initial Bidder") at a price equal to or above the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase FV Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchasea "FV Bid"), the Special Servicer shall deliver notify all other Purchase Option Holders that it has made or received, as the related Servicing File to case may be, such FV Bid (without disclosing the Certificateholder(s) effecting amount of such purchase (or any designee thereofFV Bid). (c) If . All other Purchase Option Holders may submit competing bids within the Majority Certificateholder ten Business Day period following such notice. At the conclusion of the Controlling Class has not purchased any Defaulted Mortgage Loan above-described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option purchase such Mortgage Loan from the Trust, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the Trust. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the Trustten Business Day period, the Special Servicer shall accept the highest cash offer bid received from any Person Purchase Option Holder that constitutes is at least equal to the FV Price. (e) If the Special Servicer accepts the bid of any Purchase Option Holder, such Purchase Option Holder shall be required to purchase the subject Specially Serviced Mortgage Loan within ten Business Days of receipt of notice of such acceptance. (f) If the Special Servicer has not accepted a FV Bid prior to the expiration of 120 days from the Special Servicer's most recent determination of the FV Price and thereafter receives a FV Bid or a request from a Purchase Option Holder for an updated FV Price, the Special Servicer shall within 45 days recalculate the FV Price (with no presumption that such FV Price should be reduced on account of the lack of an FV Bid) and repeat the notice and bidding procedure provided in subsection (c) above until the purchase option terminates under subsection (j) below. In connection with such recalculation, the Special Servicer may obtain an updated Appraisal if it determines that market conditions or conditions at the mortgaged property warrant an updated Appraisal. In addition, the Special Servicer shall recalculate the FV Price of any Mortgage Loan if there has been a material change in circumstances of which the Special Servicer is aware or the Special Servicer has received new information, either of which has a material effect on the fair price value. (g) If the party exercising the purchase option at the FV Price for any Specially Serviced Loan is the Special Servicer or an Affiliate thereof, the Trustee shall verify that the FV Price is at least equal to the fair value of such Mortgage Loan. In determining whether the absence FV Price is at least equal to the fair value of such Mortgage Loan the Trustee will be permitted to conclusively rely on an appraisal obtained by the Trustee from an Independent Appraiser at the time it is required to verify the FV Price and/or the opinion of an Independent expert in real estate matters (including the Master Servicer) with at least 5 years' experience in valuing or investing in loans, similar to such Mortgage Loan, that has been selected by the Trustee with reasonable care at the expense of the Trust Fund. (h) Any Purchase Option Holder may, once such option is exercisable, assign its purchase option with respect to any offer determined as provided below Specially Serviced Loan to a third party other than another Purchase Option Holder or any Person whose purchase of such Specially Serviced Loan would violate any restrictions contained in any mezzanine intercreditor agreement or any Co-Lender Agreement and upon such assignment such third party shall have all of the rights that had been granted to the Purchase Option Holder hereunder in respect of the purchase option. Such assignment shall only be faireffective upon written notice (together with a copy of the executed assignment and assumption agreement) being delivered to the Trustee, the Master Servicer and the Special Servicer. (i) In determining the FV Price for any Specially Serviced Loan, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 andmay take into account, otherwiseamong other factors, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from results of any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes appraisal or updated appraisal that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and or the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted have obtained in accordance with this Agreement within the preceding 12-month period or, prior twelve months; the opinions on fair value expressed by Independent investors in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition mortgage loans comparable to the results of any Appraisal, updated Appraisal or narrative Appraisal that it may have obtained pursuant to this Agreement within the prior 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, subject Specially Serviced Loan; the period and amount of any delinquency on the affected Mortgage subject Specially Serviced Loan, ; the occupancy level and physical condition of the related Mortgaged Property or REO Property, ; the state of the local economy economy; and the obligation expected recoveries from the subject Specially Serviced Loan if the Special Servicer were to dispose pursue a workout or foreclosure strategy instead of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted selling such Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related to a Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair priceOption Holder. (fj) Subject The purchase option for any Specially Serviced Loan pursuant to Sections 3.18(athis Section 3.19 shall terminate, and shall not be exercisable as set forth in subsections (b) through 3.18(eand (c) aboveabove (or if exercised, but the Special Servicer shall act on behalf purchase of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted subject Mortgage Loan has not yet occurred, shall terminate and be of no further force or effect) if and when (i) such Specially Serviced Loan has become a Corrected Loan, (ii) the related Mortgaged Property has become an REO Property, Property or (iii) a Final Recovery Determination has been made with respect to such Specially Serviced Loan. (k) Until such time as an FV Bid is accepted and the collection of all amounts payable related Specially Serviced Mortgage Loan is sold 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 shall continue to such sales or evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto and any customary closing matters), and if such sale is consummated in accordance with the terms of this Agreement, none pursue all of the Special Servicer, the Master Servicer or the Trustee shall have any liability other resolution options available to any Certificateholder it with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (g) Any sale of a Defaulted Mortgage Specially Serviced Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard. (l) Notwithstanding anything to the contrary herein, that rejection of such offer would be in the best interests holders of the Certificateholders, and related Companion Loan shall be entitled to purchase the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, related Loan Group Trust Mortgage Loans in accordance with the Servicing Standard, that acceptance of such offer would be terms and conditions set forth in the best interests related Co-Lender Agreement, even after it has been purchased out of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely Trust Fund pursuant to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable)this Section 3.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Greenwich Capital Commercial Funding Corp. Commercial Mortgage Trust 2006-Gg7)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 this Section 3.18 or Section 2.02 and, in either case, subject to the applicable terms and 9.01conditions set forth in the Indenture. (b) [If the Special Servicer has determined, in its reasonable good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee Trustee, the Master Servicer and the Master Servicer, and the Trustee shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling ClassIssuer. The Majority Certificateholder of the Controlling Class Issuer may at its option purchase from the Trust, at a price equal to the applicable Purchase Price, have any such Defaulted Mortgage LoanLoan released from the lien of the Indenture by delivering to the Master Servicer for deposit in the Custodial Account a cash amount equal to the Purchase Price. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (Issuer or any its designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, and other documents as shall be provided to it and are reasonably necessary to release the Mortgage Loan from the lien of the Indenture and to vest in the Certificateholder(s) effecting such purchase (or any designee Issuer ownership thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof)Issuer. (c) If the Majority Certificateholder of the Controlling Class Issuer has not purchased removed from the Trust Estate any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) above within 15 30 days after receipt by the Issuer of its having received the notice in respect thereof pursuant to contemplated by Section 3.18(b)] above, then the Trustee shall promptly notify the Master Servicer and Special Servicer that the Issuer has not so removed such Mortgage Loan, and either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option option, within 30 days after receipt of such notice, purchase such Mortgage Loan from the TrustTrust Estate, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Custodial Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, and other documents as shall be provided to it and are reasonably necessary to release the Mortgage Loan from the lien of the Indenture and to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loanthereof. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustBondholders and the Issuer (as a collective whole). Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Estate) for a period of not less than 30 10 days. Unless the Special Servicer determines that acceptance of any offer bid would not be in the best economic interests of the TrustBondholders and the Issuer (as a collective whole), the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer bid determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard3.09. The Special Servicer shall use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price [within a commercially reasonable time period] [within the time period provided for by Section 3.16(a)]. The Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneously, highest) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. [If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. .] The Special Servicer shall give the Trustee and the Master Servicer not less than five _____ Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer bid is from an Interested Person, by the Trustee. In determining whether any offer bid received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall be entitled to rely on the most recent Appraisal or updated Appraisal in the related Servicing File conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by new Appraisal, or if the most recent Appraisal is not more than 12 months old but there has been a Qualified Appraisermaterial change in such Mortgaged Property or REO Property during the prior 12 months, retained on an updated Appraisal, in any case to be obtained by the Special ServicerServicer (the cost of which shall constitute a Servicing Advance). Such On making any such determination of fair price based on the Appraisal, the Trustee shall be entitled to retain and may rely on the determinations of professional consultants. The cost of any such consultants shall be reimbursable to the Trustee from the funds on deposit in the Custodial Account. The appraiser conducting any such new Appraisal shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer not bidding with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee Master Servicer if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced bidding and by the Trustee if both the Master Servicer, at the direction of Servicer and the Special Servicer, and shall constitute a Servicing AdvanceServicer are bidding. When Where any Interested Person is among those making an offer bidding with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers bids be submitted to it (and, if the Special Servicer is bidding, shall be submitted by it to the Trustee) in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered bid amount. In determining whether any offer bid from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months)described above, and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). The Purchase Price for any such Mortgage Loan or REO Property shall in all cases be deemed a fair price. Notwithstanding the other provisions of this Section 3.18, no cash offer bid from any Interested Person the Special Servicer or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer bid is the highest cash offer bid received and at least two additional offers independent bids (not including the offers bid of Interested Persons the Special Servicer or any Affiliates thereofAffiliate) have been received. In the event the bid of the Special Servicer or any Affiliate thereof is the only bid received from Independent third parties reflecting prices less than or is the related Purchase Pricehigher of only two bids received, then additional bids shall be solicited. The Purchase Price If an additional bid or bids, as the case may be, are received and the original bid of the Special Servicer or any Affiliate thereof is the highest of all cash bids received, then the bid of the Special Servicer or such Affiliate shall no longer be deemed not to constitute a fair price. A bid of the Special Servicer shall not be accepted in the absence of a determination by the Trustee, as provided above in this Section 3.18(e), that such bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property. Any bid by the Special Servicer shall be unconditional and if accepted the Defaulted Mortgage Loan or REO Property shall be transferred to the Special Servicer without recourse, representation or warranty other than customary representations as to title given in all cases be deemed connection with the sale of a fair pricemortgage loan or real property. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating with independent third parties and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerorsbidders, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales or evaluating offers bids without obligation to deposit such amounts into the Certificate Custodial Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto and any customary closing matters)Estate, and if such sale is consummated in accordance with the terms of this Agreement, none of neither the Special Servicer, the Master Servicer or nor the Trustee shall have any liability to any Certificateholder Bondholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (g) Any sale of a Defaulted Mortgage Loan or any an REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration)only. (h) In connection with any sale or other transfer of a Defaulted Mortgage Loan or an REO Property pursuant to this Section 3.18, the Issuer shall deliver to the Trustee all certificates and opinions, if any, required by TIA xx.xx. 314(c) and 314(d) and by Sections 8.04(b) and 12.01 of the Standard Indenture Provisions; and, notwithstanding anything herein to the contrary, no such sale may be consummated and none of the Trustee, the Master Servicer or the Special Servicer shall release any documents relating to such Defaulted Mortgage Loan or REO Property to the prospective purchaser or other transferee unless and until the Trustee receives any such certificates and opinions. (i) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer bid if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer bid would be in the best interests of the CertificateholdersBondholders and the Issuer (taken as a collective whole), and the Special Servicer may accept a lower cash offer bid (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer bid would be in the best interests of the Certificateholders Bondholders and the Issuer (taken as a collective whole) (for example, if the prospective buyer making the lower offer bid is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer bid are more favorable).

Appears in 1 contract

Samples: Servicing and Administration Agreement (Structured Asset Securities Corp Series 1997 Ll I)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer (subject to Section 3.27(a)) or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.01. (b) [If Subject to Section 2.03(a), if the Special Servicer has determined, determined in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee Trustee, the Master Servicer and the Master ServicerOperating Adviser, and the Trustee Trustee, following its receipt of such notice, shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling ClassMajority Subordinate Certificateholder. The Majority Subordinate Certificateholder of the Controlling Class may at its option purchase from the TrustTrust Fund, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (bSection 3.18(b) shall be deposited by the Master Servicer into the Certificate AccountAccount within one Business Day of receipt thereof, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has funds have been madereceived by the Master Servicer, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder the related Mortgage File, and shall execute and deliver such instruments of transfer or assignmentassignment without representation or warranty whatsoever and, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof)Majority Subordinate Certificateholder. (c) If the Majority Subordinate Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 30 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Special Master Servicer or, subject to or the Special Servicer's prior rights in such regard, the Master Servicer may at its option purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the applicable Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (cSection 3.18(c) shall be deposited by the Master Servicer into the Certificate AccountAccount within one Business Day after receipt, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has funds have been madereceived by the Master Servicer, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignmentassignment without representation or warranty whatsoever and, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Subject to Section 3.27(a), the Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section Sections 3.18(b) or Section and 3.18(c) above, if and when the Special Servicer determines, consistent with with, and in the manner contemplated by, the Servicing Standard, that such a sale would be in maximize the best economic interests recovery on such Defaulted Mortgage Loan to Certificateholders on a present value basis (and shall so offer any such Defaulted Mortgage Loan at the direction of the TrustOperating Adviser). Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 10 days. Unless Subject to Section 3.27(a), unless the Special Servicer determines that acceptance of any offer bid would not be in the best economic interests of the TrustTrust Fund, the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer bid determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard3.09. The Special Servicer shall use its best reasonable efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Subject to Section 3.27(a), the Special Servicer shall accept the first (and, if multiple offers bids are received receive contemporaneously, highest) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), then subject to Section 3.27(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five three Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee(except as otherwise provided below in this Section 3.18(e)). In determining whether any offer bid received from an Interested Person represents a fair price for any such Defaulted Mortgage Loan or REO Property, the Trustee Special Servicer shall be supplied with and shall may rely on a Appraisal prepared at the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within expense of the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared Trust Fund by a Qualified Appraiseran Independent MAIdesignated appraiser, retained by the Special Servicer, and who has a minimum of five years of experience in the subject property type and market. (The Special Servicer may rely on a certification of any bidder to the effect that such bidder is not an Interested Person.) Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer not bidding with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee Master Servicer if the Special Servicer is bidding. (The Special Servicer shall not bid with respect to a Defaulted Mortgage Loan or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by REO Property if the Master Servicer, at Servicer has informed it that the direction of the Special Servicer, and shall constitute Master Servicer intends to submit a Servicing Advance. When bid.) Where any Interested Person is among those making an offer bidding with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers bids be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered bid amount. In determining whether any offer bid from a Person other than an Interested Person or from an Interested Person other than the Special Servicer constitutes a fair price for any such Defaulted Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative described above and any Appraisal that it may have otherwise obtained pursuant to this Agreement within the prior 12 monthsAgreement), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Defaulted Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). The Purchase Price for any such Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. Notwithstanding the other provisions of this Section 3.18, no cash offer bid from any Interested Person the Special Servicer or any Affiliate thereof in an amount that is less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless (i) such offer bid is the highest cash offer received and bid received, (ii) at least two additional offers independent bids (not including the offers bid of Interested Persons the Special Servicer or any Affiliates thereofAffiliate) have been received from Independent third parties reflecting prices less than (in the related Purchase Price. The Purchase Price for event the bid of the Special Servicer or any Defaulted Mortgage Loan Affiliate thereof is the only bid received or REO Property is the higher of only two bids received, then additional bids shall in all cases be deemed solicited) and (iii) such bid is acceptable to the Operating Adviser or, if none, to the Holders of Certificates evidencing a fair pricemajority of the Voting Rights allocated to the Controlling Class. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating negotiate and taking take any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, and the collection of collect all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerorsbidders, and may retainretain fees, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales or evaluating offers bids without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto and any customary closing matters)Fund, and if such sale is consummated in accordance with the terms of this Agreement, none of the Special Servicer, the Master Servicer or the Trustee shall have any no liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the TrusteeServicer. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, unless changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Subject to Section 3.183.27(a), the Special Servicer shall not be obligated by any of Section 3.18(a) through Section 3.18(g) to accept the highest cash offer bid if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer bid would be in the best interests of the Certificateholders. In addition, and subject to Section 3.27(a), the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) bid if it determines, in accordance with the Servicing Standard, that acceptance of such offer bid would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer bid is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer bid are more favorable.).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Salomon Brothers Mortgage Securities Vii Inc)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.02, 2.03 and 9.01. (b) [If the Special Servicer (or, in the case of the Crystal Pavilion/Xxxxx Building Mortgage Loan, the Master Servicer) has determined, in its reasonable, good faith and reasonable judgment, that any Defaulted Mortgage Loan has or will become the subject of a to foreclosure sale or similar proceeding, proceedings and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standard, then the Special Servicer (or, in the case of the Crystal Pavilion/Xxxxx Building Mortgage Loan, the Master Servicer) shall promptly so notify in writing the Trustee and and, unless it is the party giving the notice, the Master Servicer, and the Trustee shall, within 10 five days after receipt of such notice, so notify all the Controlling Class Certificateholders. Any single Controlling Class Certificateholder or group of Controlling Class Certificateholders may, at its or their option, within 15 days after receipt of such notice, purchase any Defaulted Mortgage Loan out of the Controlling Class. The Majority Certificateholder of the Controlling Class may at its option purchase from the Trust, Trust Fund at a cash price equal to the applicable Purchase Price; provided that, any if more than one Controlling Class Certificateholder or group of Controlling Class Certificateholders desire to purchase such Defaulted Mortgage Loan, preference shall be given to the Controlling Class Certificateholder or group of Controlling Class Certificateholders with the largest Percentage Interest in the Controlling Class. The Purchase Price for any Defaulted Mortgage Loan purchased under this paragraph (bSection 3.18(b) shall be deposited into the Certificate Collection Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereofto its or their designee) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the such Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereofto its or their designee). (c) If the Majority Certificateholder none of the Controlling Class Certificateholders has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days of its such Holders' having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either then the Trustee shall within five days of the end of such 15-day period send notice to the Master Servicer and the Special Servicer orthat such Mortgage Loan was not purchased by such Certificateholder(s), subject to the Special Servicer's prior rights in such regard, and either the Master Servicer may or the Special Servicer (in that order of priority) may, at its option option, within 15 days after receipt of such notice, purchase (or designate an Affiliate thereof to purchase) such Mortgage Loan from out of the Trust, Trust Fund at a cash price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (cSection 3.18(c) shall be deposited into the Certificate Collection Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special ServicerServicer (or the designated Affiliate thereof), as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special ServicerServicer (or the designated Affiliate thereof), as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master ServicerServicer (or any designated Affiliate thereof), the Special Servicer shall deliver the related Servicing File to the Master Servicer (or any designated Affiliate thereof). For purposes of the other sections of this Agreement, any purchase of a Defaulted Mortgage Loan by a designated Affiliate of the Master Servicer or Special Servicer pursuant to this Section 3.18(c) shall be deemed a purchase of such Defaulted Mortgage Loan by the Master Servicer or the Special Servicer, as applicable. (d) The Subject to Section 3.24, the Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, in its good faith and reasonable judgment, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustCertificateholders (as a collective whole). Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 ten days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the TrustSubject to Section 3.18(h) and Section 3.24, the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such Mortgage Loan. In the absence of any offer cash bid determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard3.09. The Special Servicer shall use its best efforts to solicit offers cash bids for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Subject to Section 3.18(h) and Section 3.24, the Special Servicer shall accept the first (and, if multiple offers cash bids are received contemporaneouslyby a specified bid date, the highest) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom receivedcircumstances. The Special Servicer shall give the Trustee and Trustee, the Master Servicer and the Controlling Class Representative not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer bid is from the Special Servicer or an Interested PersonAffiliate thereof, by the Trustee. In determining whether any offer bid received from the Special Servicer or an Interested Person Affiliate thereof represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall be entitled to rely on the most recent Appraisal or updated Appraisal in the related Servicing File conducted in accordance with this Agreement within the preceding 12-month period (or, in the absence of any such Appraisal or if there has been a material change at the subject property since any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained new Appraisal to be obtained by the Special Servicer. Such appraiser Servicer (the cost of which shall be covered by, and be reimbursable as, a Servicing Advance)). The appraiser conducting any such new Appraisal shall be a Qualified Appraiser that is (i) selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer bidding with respect to a Defaulted Mortgage Loan or REO Property and shall be (ii) selected by the Trustee if either the Special Servicer or an any Affiliate thereof is making such an offerso bidding. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When Where any Interested Person is among those making an offer bidding with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers bids be submitted to it (or, if the Special Servicer or an Affiliate thereof is bidding, shall be submitted by it to the Trustee) in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered bid amount. In determining whether any offer cash bid from a Person other than the Special Servicer or an Interested Person Affiliate thereof constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative updated Appraisal that it or the Master Servicer may have obtained pursuant to in accordance with this Agreement within the prior 12 months)preceding 12-month period, and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters Qualified Appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). The Purchase Price for any such Mortgage Loan or REO Property shall in all cases be deemed a fair price. Notwithstanding the other provisions of this Section 3.18, no cash offer bid from any Interested Person the Special Servicer or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer bid is the highest cash offer bid received and at least two additional offers independent cash bids (not including the offers bid of Interested Persons the Special Servicer or any Affiliates thereofAffiliate) have been received. In the event the cash bid of the Special Servicer or any Affiliate thereof is the only cash bid received from Independent third parties reflecting prices less than or is the related Purchase Pricehigher of only two cash bids received, then additional cash bids shall be solicited. The Purchase Price If an additional cash bid or cash bids, as the case may be, are received and the original cash bid of the Special Servicer or any Affiliate thereof is the highest of all cash bids received or if no additional cash bids are received, then the cash bid of the Special Servicer or such Affiliate shall be accepted, provided that the Trustee has otherwise determined, as provided above in this Section 3.18(e), that such cash bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property. Any cash bid by the Special Servicer shall be unconditional; and, if accepted, the Defaulted Mortgage Loan or REO Property shall be transferred to the Special Servicer without recourse, representation or warranty other than customary representations as to title given in all cases be deemed connection with the sale of a fair pricemortgage loan or real property. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating with independent third parties and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerorsbidders, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales or evaluating offers cash bids without obligation to deposit such amounts into the Certificate Collection Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse (except for warranties of title and condition contemplated by Section 3.18(d)) to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto and any customary closing matters)Trust, and if such sale is consummated in accordance with the terms of this Agreement, none of neither the Special Servicer, the Master Servicer or nor the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration)only. (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, but subject to Section 3.24, the Special Servicer shall not be obligated to accept the highest cash offer bid if the Special Servicer determines, in accordance its good faith and reasonable judgment, consistent with the Servicing Standard, that rejection of such offer bid would be in the best interests of the CertificateholdersCertificateholders (as a collective whole), and the Special Servicer may accept a lower cash offer bid (from any Person other than itself or an Affiliate) if it determines, in accordance its good faith and reasonable judgment, consistent with the Servicing Standard, that acceptance of such offer bid would be in the best interests of the Certificateholders (as a collective whole) (for example, if the prospective buyer making the lower offer bid is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer bid are more favorable). (i) Notwithstanding anything to the contrary, this Section 3.18 shall not apply to any REO Property relating to the Crystal Pavilion/Xxxxx Building Mortgage Loan; and, if the Crystal Pavilion/Xxxxx Building Mortgage Loan becomes a Defaulted Mortgage Loan, then the Master Servicer (and not the Special Servicer) shall have the authority to sell such Mortgage Loan as contemplated by Sections 3.18(d) through 3.18(h), and all references to "Special Servicer" in such sections shall be deemed to mean the Master Servicer.

Appears in 1 contract

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

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on in connection with a Permitted Purchase of such Mortgage Loan or REO Property, as the terms and subject to the conditions set forth case may be, and/or in connection with a sale of such REO Property in accordance with this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 and 9.013.18. (b) [If Within five (5) Business Days after the Special Servicer has determinedknowledge that any Mortgage Loan has become a Specially Serviced Mortgage Loan, the Special Servicer shall give notice of such event to each Holder of a Certificate of the Controlling Class and the Trustee. The Special Servicer, any single Certificateholder or any group of Certificateholders entitled to a majority of the Voting Rights allocated to the Controlling Class and any assignees of the foregoing parties (collectively, the "Purchase Option Holders") shall each have the option to purchase such Specially Serviced Mortgage Loan at a cash price that is at least equal to the Purchase Price; provided that the Special Servicer has determined in its reasonable and good faith and reasonable judgment, judgment that a material default exists with respect to such Specially Serviced Mortgage Loan. The Special Servicer shall accept the first offer by a Purchase Option Holder that is at least equal to the Purchase Price for the subject Mortgage Loan. (c) If none of the Purchase Option Holders exercises its option to purchase any Defaulted Specially Serviced Mortgage Loan as described in subsection (b) above, then each Purchase Option Holder will become also have the subject option to purchase that Specially Serviced Mortgage Loan at a price equal to the fair value (the "FV Price") of such Specially Serviced Mortgage Loan; provided that a material default exists with respect to such Specially Serviced Mortgage Loan. Upon receipt of a foreclosure sale or similar proceeding, and that request from any Purchase Option Holder to determine the sale FV Price in contemplation of such its intention to exercise its option to purchase a Specially Serviced Mortgage Loan under as to which a material default exists at a price that is below the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing StandardPurchase Price, the Special Servicer shall promptly so notify obtain an MAI appraisal (the cost of which shall be covered by a Servicing Advance) of the related Mortgaged Property by an Independent Appraiser (unless such an appraisal was obtained within one year of such date and the Special Servicer has no knowledge of any circumstances that would materially affect the validity of such appraisal). Promptly after obtaining such appraisal, the Special Servicer shall determine the FV Price for the subject Specially Serviced Mortgage Loan in writing accordance with the Servicing Standard and the provisions of subsection (i) below. Promptly after determining such FV Price, the Special Servicer shall report such FV Price to the Trustee and each Purchase Option Holder. (d) If the Master ServicerSpecial Servicer determines that it is willing, and or another Purchase Option Holder notifies the Trustee shallSpecial Servicer that it is willing, within 10 days after receipt of to purchase any Specially Serviced Mortgage Loan as to which a material default exists (the party submitting such noticebid, notify all the Certificateholders of the Controlling Class. The Majority Certificateholder of the Controlling Class may at its option purchase from the Trust, "Initial Bidder") at a price equal to or above the applicable Purchase PriceFV Price (a "FV Bid"), any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchase, then the Special Servicer shall deliver notify all other Purchase Option Holders that it has made or received, as the related Servicing File to case may be, such FV Bid (without disclosing the Certificateholder(samount of such FV Bid). All other Purchase Option Holders may submit competing bids within the ten (10) effecting Business Day period following such purchase (or any designee thereof). (c) If notice. At the Majority Certificateholder conclusion of the Controlling Class has not purchased any Defaulted Mortgage Loan above-described in the first sentence of Section 3.18(bten (10) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option purchase such Mortgage Loan from the Trust, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the Trust. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the TrustBusiness Day period, the Special Servicer shall accept the highest cash offer bid received from any Person Purchase Option Holder that constitutes is at least equal to the FV Price for the subject Specially Serviced Mortgage Loan. (e) If the Special Servicer accepts the bid of any Purchase Option Holder, such Purchase Option Holder shall be required to purchase the subject Specially Serviced Mortgage Loan within ten (10) Business Days of receipt of notice of such acceptance; provided that neither the Special Servicer nor any Holder of a Certificate of the Controlling Class shall be liable for the failure of any assignee whose bid has been accepted by the Special Servicer to complete any such purchase. (f) If the Special Servicer has not accepted a FV Bid prior to the expiration of 120 days from its determination of the FV Price and thereafter receives a FV Bid or a request from a Purchase Option Holder for an updated FV Price, the Special Servicer shall within 45 days recalculate the FV Price (with no presumption that such FV Price should be reduced on account of the lack of an FV Bid) and repeat the notice and bidding procedure provided in subsection (d) above until the purchase option terminates under subsection (j) below. (g) If the party exercising the purchase option at the FV Price for any Specially Serviced Mortgage Loan is the Special Servicer or an Affiliate thereof, the Trustee shall verify that the FV Price of such Mortgage Loan is at least equal to the fair price for value of such Mortgage Loan. In conducting such verification, the absence Trustee will be permitted to conclusively rely on an appraisal obtained by the Trustee from an Independent Appraiser at the time it is required to verify such FV Price and/or the opinion of an Independent expert in real estate matters (including the Master Servicer) with at least five years' experience in valuing or investing in loans, similar to the subject Specially Serviced Mortgage Loan, that has been selected by the Trustee with reasonable care at the expense of the Trust Fund. (h) Any Purchase Option Holder may, once such purchase option is exercisable pursuant to this Section 3.18, assign its purchase option with respect to any Specially Serviced Mortgage Loan to a third party other than the related Mortgagor or, if such assignment would violate the terms of any offer determined related co-lender, intercreditor or similar agreement, any Affiliate of the related Mortgagor; and, upon such assignment such third party shall have all of the rights that had been granted to the Purchase Option Holder hereunder in respect of the purchase option. Such assignment shall only be effective upon written notice (together with a copy of the executed assignment and assumption agreement) being delivered to the Trustee, the Master Servicer and the Special Servicer. (i) In determining the FV Price for any Specially Serviced Mortgage Loan under this Section 3.18, the Special Servicer may take into account, among other factors, the results of any appraisal or updated appraisal (the cost of which shall constitute a Servicing Advance) that it or the Master Servicer may have obtained in accordance with this Agreement within the prior twelve months; the opinions on fair value expressed by Independent investors in mortgage loans comparable to the subject Specially Serviced Mortgage Loan; the period and amount of any delinquency on the subject Specially Serviced Mortgage Loan; the physical condition of the related Mortgaged Property; the state of the local economy; and the expected recoveries from the subject Specially Serviced Mortgage Loan if the Special Servicer were to pursue a workout or foreclosure strategy instead of selling such Mortgage Loan to a Purchase Option Holder. (j) The purchase option for any Specially Serviced Mortgage Loan pursuant to this Section 3.18 shall terminate, and shall not be exercisable as set forth in subsections (b) and (c) above (or if exercised, but the purchase of such Specially Serviced Mortgage Loan has not yet occurred, shall terminate and be of no further force or effect) if and when (i) the Special Servicer has accepted a FV Bid (although the purchase option shall resume if the Person that submitted that FV Bid does not complete the purchase of the subject Specially Serviced Mortgage within the time period provided below for under Section 3.18(e)), (ii) such Specially Serviced Mortgage Loan has become a Corrected Mortgage Loan or is otherwise no longer in material default, (iii) the related Mortgaged Property has become an REO Property, (iv) a Final Recovery Determination has been made with respect to be fairsuch Specially Serviced Mortgage Loan or (v) the subject Specially Serviced Mortgage Loan has been removed from the Trust Fund. (k) Until such time as a FV Bid is accepted with respect to any Specially Serviced Mortgage Loan, the Special Servicer shall proceed continue to pursue all of the other resolution options available to it with respect to such Defaulted Specially Serviced Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. . (l) Any Specially Serviced Mortgage Loan that is purchased pursuant to the purchase option provided for in this Section 3.18 will remain subject to any cure and/or purchase rights of any holder of a related mezzanine loan in connection with a Mortgage Loan default as set forth in the related intercreditor agreement. (m) The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Subject to Section 6.11, if and as applicable, the Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneouslycontemporaneously or subsequently, the highest) cash offer received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), then (subject to Section 6.11, if and as applicable) the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. . (n) The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' Depositor prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). 3.18. (o) No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (ep) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, Property for purposes of this Section 3.18(d)3.18, shall be determined by the Special Servicer or, if such cash offer is from the Special Servicer or an Interested PersonAffiliate of the Special Servicer, by the Trustee. In determining whether any offer received from the Special Servicer or an Interested Person Affiliate of the Special Servicer represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall be entitled conclusively to rely on the most recent Appraisal or updated Appraisal appraisal in the related Servicing File conducted in accordance with this Agreement within the preceding 12-month period (or, in the absence of any such Appraisalappraisal or if there has been a material change at the subject REO Property since any such appraisal, on a narrative new appraisal prepared by a Qualified Appraiser, retained to be obtained by the Special Servicer. Such appraiser Servicer (the cost of which shall be covered by, and be reimbursable as, a Servicing Advance)). The appraiser conducting any such new appraisal shall be an Independent Appraiser selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer bidding with respect to a Defaulted Mortgage Loan or an REO Property and shall be selected by the Trustee (at the expense of the Trust Fund) if either the Special Servicer or an any Affiliate thereof is making such an offerso bidding. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When Where any Interested Person is among those making an offer bidding with respect to a Defaulted Mortgage Loan or an REO Property, the Special Servicer shall require that all offers be submitted to it (and, if the Special Servicer or any Affiliate thereof is bidding, to the Trustee) in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered offer amount. In determining whether any offer from a Person other than an Interested Person itself or one of its Affiliates constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition to the results of any Appraisal, appraisal or updated Appraisal or narrative Appraisal appraisal that it or the Master Servicer may have obtained pursuant to in accordance with this Agreement within the prior 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters Independent Appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or subject REO Property, the state of the local economy and the obligation to dispose of any the subject REO Property within the time period specified in Section 3.16(a). The Purchase Price for any REO Property shall in all cases be deemed a fair price. Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person the Special Servicer or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional independent offers (not including the offers offer of Interested Persons the Special Servicer or any Affiliates Affiliate thereof) have been received. In the event the offer of the Special Servicer or any Affiliate thereof is the only offer received from Independent third parties reflecting prices less than or is the related Purchase Pricehigher of only two offers received, then additional offers shall be solicited. The Purchase Price If an additional offer or offers, as the case may be, are received and the original offer of the Special Servicer or any Affiliate thereof is the highest of all cash offers received, then the offer of the Special Servicer or such Affiliate shall be accepted, provided that the Trustee has otherwise determined, as provided above in this Section 3.18(p), that such offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property. Any offer by the Special Servicer shall be unconditional; and, if accepted, the subject REO Property shall be transferred to the Special Servicer without recourse, representation or warranty other than customary representations as to title given in all cases be deemed connection with the sale of a fair pricereal property. (fq) Subject to Sections 3.18(a) through 3.18(e3.18(p) above, and further subject to Section 6.11, if and as applicable, the Special Servicer shall act on behalf of the Trustee in negotiating with independent third parties seeking to purchase an REO Property and taking any other action necessary or appropriate in connection with the sale of any Defaulted Specially Serviced Mortgage Loan or REO PropertyProperty pursuant to this Section 3.18, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerorsbidders for any REO Property, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales to, or evaluating offers bids for, such REO Property without obligation to deposit such amounts into the Certificate Custodial Account. Any sale of a Defaulted Specially Serviced Mortgage Loan or any an REO Property pursuant to this Section 3.18 shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto and any customary closing matters)Trust, and if such sale is consummated in accordance with the terms of this Agreement, none of neither the Special Servicer, the Master Servicer or nor the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (gr) Any sale of a Defaulted Specially Serviced Mortgage Loan or any an REO Property pursuant to this Section 3.18 shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow and shall be on a sale for other consideration)servicing released basis. (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (TIAA Seasoned Commercial Mortgage Trust 2007-C4)

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Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a), 2.02(b) and 9.01. (b) [If Subject to Sections 2.03(a) and 2.02(b), if the Special Servicer has determined, determined in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee Trustee, following its receipt of such notice, shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling ClassMajority Subordinate Certificateholder. The Majority Subordinate Certificateholder of the Controlling Class may at its option purchase from the TrustTrust Fund, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof).Majority Subordinate Certificateholder. 104 (c) If the Majority Subordinate Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 30 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Master Servicer or the Special Servicer or, subject (with preference given to the Special Servicer's prior rights in such regard, the Master Servicer ) may at its option purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Subject to Section 6.11, the Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section Sections 3.18(b) or Section and 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustTrust Fund. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 10 days. Unless the Special Servicer determines that acceptance of any offer bid would not be in the best economic interests of the TrustCertificateholders, the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer bid determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and3.09. Subject to Section 6.11, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneouslycontemporaneously or subsequently, the highest, provided that the Special Servicer is not obligated to the first bidder) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five three Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to 105 the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee(except as otherwise provided below in this Section 3.18(e)). In determining whether any offer bid received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee Special Servicer shall be supplied with and shall may rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared at the expense of the Trust Fund by a Qualified an Independent Appraiser, retained by the Special Servicer. (The Special Servicer may rely on a certification of any bidder to the effect that such bidder is not an Interested Person.) Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer not bidding with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee Master Servicer if the Special Servicer is bidding. (The Master Servicer shall not bid with respect to a Defaulted Mortgage Loan or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of REO Property if the Special Servicer, and shall constitute Servicer has informed it that the Special Servicer intends to submit a Servicing Advance. When bid.) Where any Interested Person is among those making an offer bidding with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers bids be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered bid amount. In determining whether any offer bid from a Person other than an Interested Person or from an Interested Person other than the Special Servicer constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative Appraisal appraisal described above and any appraisal that it may have obtained pursuant to this Agreement within the prior 12 monthsSection 3.09(a)), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). The Purchase Price for any such Mortgage Loan or REO Property shall in all cases be deemed a fair price. Notwithstanding the other provisions of this Section 3.183.18 (but excluding a purchase pursuant to Section 3.18(c)), no cash offer bid from any Interested Person the Master Servicer, Special Servicer or any Affiliate of their Affiliates thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer bid is the highest cash offer bid received and at least two additional offers independent bids (not including the offers bid of Interested Persons the Master Servicer, Special Servicer or any Affiliates thereofAffiliate) have been received. In the event the bid of the Special Servicer or any Affiliate is the only bid received from Independent third parties reflecting prices less than or is the related Purchase Pricehigher of only two bids received, then additional bids shall be solicited. The Purchase Price for If an additional bid or bids are received and the original bid of the Special Servicer or any Defaulted Mortgage Loan Affiliate is the highest of all bids received, then the bid of the Special Servicer or REO Property such Affiliate shall in all cases no longer be deemed not to constitute a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) aboveabove and Section 6.11, the Special Servicer shall act on behalf of the Trustee in negotiating with independent third parties and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerorsbidders, and may retain, fees that approximate the Special Servicer's actual costs in the 106 preparation and delivery of information pertaining to such sales or evaluating offers bids without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and final, without recourse to the Trustee or the Trust (except such recourse imposed by those Fund and without representations and warranties typically given in such transactionsof title and condition, any prorations applied thereto and any customary closing matters)unless liability for breach thereof is limited to recourse against the Trust Fund, and if such sale is consummated in accordance with the terms of this Agreement, none of neither the Special Servicer, the Master Servicer or nor the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, unless changes in the REMIC Provisions or authoritative interpretations thereof made or issued subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding The Special Servicer shall not be obligated by any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated 3.18 to accept the highest cash offer bid if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer bid would be in the best interests of the Certificateholders. In addition, and the Special Servicer may accept a lower cash offer bid (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer bid would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer bid is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer bid are more favorable).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only (i) on the terms and subject to the conditions set forth in this Section 3.18 or 3.19, (ii) as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.019.01 of this Agreement, and (iii) in the case of a Mortgage Loan with a related mezzanine loan, in connection with a Mortgage Loan default as set forth in the related intercreditor agreement. (b) [If Within five Business Days after any Mortgage Loan has become a Specially Serviced Mortgage Loan, the Special Servicer has determinedshall give notice of such event to the Trustee, in its good faith and reasonable judgmentthe Trustee will promptly notify each Holder of a Certificate of the Controlling Class. The Special Servicer, that any Defaulted single Holder or any group of Certificateholders evidencing a majority of the Voting Rights allocated to the Controlling Class and any assignees (other than an assignee whose purchase of such Specially Serviced Mortgage Loan would violate the terms of any related mezzanine loan intercreditor agreement) of the foregoing parties (collectively, the "Purchase Option Holders") shall each have the option to purchase such Specially Serviced Mortgage Loan at a cash price that is at least equal to the Purchase Price. (c) If none of the Purchase Option Holders exercises its option to purchase any Specially Serviced Mortgage Loan as described in subsection (b) above, then each Purchase Option Holder (other than an assignee whose purchase of such Specially Serviced Mortgage Loan would violate the terms of any related mezzanine loan intercreditor agreement or co-lender agreement) will become also have the subject option to purchase that Specially Serviced Mortgage Loan at a price equal to the fair value of such Specially Serviced Mortgage Loan (the "FV Price"). Upon receipt of a foreclosure sale or similar proceeding, and that request from any Purchase Option Holder to determine the sale FV Price in contemplation of such its intention to exercise its option to purchase a Specially Serviced Mortgage Loan under at a price that is below the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing StandardPurchase Price, the Special Servicer shall promptly so notify obtain an MAI appraisal of the related Mortgaged Property by an Independent Appraiser (unless such an appraisal was obtained within one year of such date and the Special Servicer has no knowledge of any circumstances that would materially affect the validity of such appraisal). Promptly after obtaining such appraisal, the Special Servicer shall determine the FV Price in writing accordance with the Servicing Standard and the provisions of subsection (j) below. Promptly after determining the FV Price, the Special Servicer shall report such FV Price to the Trustee and each Purchase Option Holder. (d) In the Master Servicerevent that the Special Servicer determines that it is willing, and or another Purchase Option Holder notifies the Trustee shallSpecial Servicer that it is willing, within 10 days after receipt of to purchase any Specially Serviced Mortgage Loan (the party submitting such noticebid, notify all the Certificateholders of the Controlling Class. The Majority Certificateholder of the Controlling Class may at its option purchase from the Trust, "Initial Bidder") at a price equal to or above the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase FV Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchasea "FV Bid"), the Special Servicer shall deliver notify all other Purchase Option Holders that it has made or received, as the related Servicing File to case may be, such FV Bid (without disclosing the Certificateholder(s) effecting amount of such purchase (or any designee thereofFV Bid). (c) If . All other Purchase Option Holders may submit competing bids within the Majority Certificateholder ten Business Day period following such notice. At the conclusion of the Controlling Class has not purchased any Defaulted Mortgage Loan above-described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option purchase such Mortgage Loan from the Trust, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the Trust. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the Trustten Business Day period, the Special Servicer shall accept the highest cash offer bid received from any Person Purchase Option Holder that constitutes is at least equal to the FV Price. (e) If the Special Servicer accepts the bid of any Purchase Option Holder, such Purchase Option Holder shall be required to purchase the subject Specially Serviced Mortgage Loan within ten Business Days of receipt of notice of such acceptance. (f) If the Special Servicer has not accepted a FV Bid prior to the expiration of 120 days from the Special Servicer's most recent determination of the FV Price and thereafter receives a FV Bid or a request from a Purchase Option Holder for an updated FV Price, the Special Servicer shall within 45 days recalculate the FV Price (with no presumption that such FV Price should be reduced on account of the lack of an FV Bid) and repeat the notice and bidding procedure provided in subsection (c) above until the purchase option terminates under subsection (j) below. In connection with such recalculation, the Special Servicer may obtain an updated Appraisal if it determines that market conditions or conditions at the mortgaged property warrant an updated Appraisal. In addition, the Special Servicer shall recalculate the FV Price of any Mortgage Loan if there has been a material change in circumstances of which the Special Servicer is aware or the Special Servicer has received new information, either of which has a material effect on the fair price value. (g) If the party exercising the purchase option at the FV Price for any Specially Serviced Mortgage Loan is the Special Servicer or an Affiliate thereof, the Trustee shall verify that the FV Price is at least equal to the fair value of such Mortgage Loan. In determining whether the absence FV Price is at least equal to the fair value of such Mortgage Loan the Trustee will be permitted to conclusively rely on an appraisal obtained by the Trustee from an Independent Appraiser at the time it is required to verify the FV Price and/or the opinion of an Independent expert in real estate matters (including the Master Servicer) with at least 5 years' experience in valuing or investing in loans, similar to such Mortgage Loan, that has been selected by the Trustee with reasonable care at the expense of the Trust Fund. (h) Any Purchase Option Holder may, once such option is exercisable, assign its purchase option with respect to any Specially Serviced Mortgage Loan to a third party other than another Purchase Option Holder or any Person whose purchase of such Specially Serviced Mortgage Loan would violate any restrictions contained in any mezzanine intercreditor agreement and upon such assignment such third party shall have all of the rights that had been granted to the Purchase Option Holder hereunder in respect of the purchase option. Such assignment shall only be effective upon written notice (together with a copy of the executed assignment and assumption agreement) being delivered to the Trustee, the Master Servicer and the Special Servicer. (i) In determining the FV Price for any Specially Serviced Mortgage Loan, the Special Servicer may take into account, among other factors, the results of any offer determined appraisal or updated appraisal that it or the Master Servicer may have obtained in accordance with this Agreement within the prior twelve months; the opinions on fair value expressed by Independent investors in mortgage loans comparable to the subject Specially Serviced Mortgage Loan; the period and amount of any delinquency on the subject Specially Serviced Mortgage Loan; the physical condition of the related Mortgaged Property; the state of the local economy; and the expected recoveries from the subject Specially Serviced Mortgage Loan if the Special Servicer were to pursue a workout or foreclosure strategy instead of selling such Mortgage Loan to a Purchase Option Holder. (j) The purchase option for any Specially Serviced Mortgage Loan pursuant to this Section 3.19 shall terminate, and shall not be exercisable as provided below set forth in subsections (b) and (c) above (or if exercised, but the purchase of the subject Mortgage Loan has not yet occurred, shall terminate and be of no further force or effect) if and when (i) such Specially Serviced Mortgage Loan has become a Corrected Mortgage Loan, (ii) the related Mortgaged Property has become an REO Property or (iii) a Final Recovery Determination has been made with respect to be fairsuch Specially Serviced Mortgage Loan. (k) Until such time as an FV Bid is accepted, the Special Servicer shall proceed continue to pursue all of the other resolution options available to it with respect to such Defaulted the Specially Serviced Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. . (l) The Special Servicer shall use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price that is in accordance with the Servicing Standard and that is within the time period provided for by Section 3.16(a3.17(a). The Subject to Section 6.11, the Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneouslycontemporaneously or subsequently, the highest) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a3.17(a), then (subject to Section 6.11) the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. . (m) The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' Depositor prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). 3.19. (n) No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (eo) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, Property for purposes of this Section 3.18(d)3.19, shall be determined by the Special Servicer or, if such cash offer bid is from an Interested Person, by the Trustee. In determining whether any offer bid received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall be entitled to rely on the most recent Appraisal or updated Appraisal appraisal in the related Servicing File conducted in accordance with this Agreement within the preceding 12-month period (or, in the absence of any such Appraisalappraisal or if there has been a material change at the subject property since any such appraisal, on a narrative new appraisal prepared by a Qualified Appraiser, retained to be obtained by the Special Servicer. Such appraiser Servicer (the cost of which shall be covered by, and be reimbursable as, a Servicing Advance)). The appraiser conducting any such new appraisal shall be an Independent Appraiser selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer bidding with respect to a Defaulted Mortgage Loan or an REO Property and shall be selected by the Trustee if either the Special Servicer or an any Affiliate thereof is making such an offerso bidding. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When Where any Interested Person is among those making an offer bidding with respect to a Defaulted Mortgage Loan or an REO Property, the Special Servicer shall require that all offers bids be submitted to it (and, if the Special Servicer or any Affiliate thereof is bidding, to the Trustee) in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered bid amount. In determining whether any offer bid from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition to the results of any Appraisal, appraisal or updated Appraisal or narrative Appraisal appraisal that it or the Master Servicer may have obtained pursuant to in accordance with this Agreement within the prior 12 twelve months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters Independent Appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or subject REO Property, the state of the local economy and the obligation to dispose of any the subject REO Property within the time period specified in Section 3.16(a3.17(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. Notwithstanding the other provisions of this Section 3.19, no cash bid from the Special Servicer or any Affiliate thereof shall constitute a fair price for any REO Property unless such bid is the highest cash bid received and at least two independent bids (not including the bid of the Special Servicer or any Affiliate) have been received. In the event the bid of the Special Servicer or any Affiliate thereof is the only bid received or is the higher of only two bids received, then additional bids shall be solicited. If an additional bid or bids, as the case may be, are received and the original bid of the Special Servicer or any Affiliate thereof is the highest of all cash bids received, then the bid of the Special Servicer or such Affiliate shall be accepted, provided that the Trustee has otherwise determined, as provided above in this Section 3.19(s), that such bid constitutes a fair price for any REO Property. Any bid by the Special Servicer shall be unconditional; and, if accepted, the subject REO Property shall be transferred to the Special Servicer without recourse, representation or warranty other than customary representations as to title given in connection with the sale of a real property. (fp) Subject to Sections 3.18(a3.19(a) through 3.18(e3.19(g) above, and further subject to Section 6.11, the Special Servicer shall act on behalf of the Trustee in negotiating with independent third parties seeking to purchase an REO Property and taking any other action necessary or appropriate in connection with the sale of any Defaulted Specially Serviced Mortgage Loan or REO PropertyProperty pursuant to this Section 3.19, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerorsbidders for any REO Property, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales to, or evaluating offers bids for, such REO Property without obligation to deposit such amounts into the Certificate Custodial Account. Any sale of a Defaulted Specially Serviced Mortgage Loan or any an REO Property pursuant to this Section 3.19 shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto and any customary closing matters)Trust, and if such sale is consummated in accordance with the terms of this Agreement, none of neither the Special Servicer, the Master Servicer or nor the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (gq) Any sale of a Defaulted Specially Serviced Mortgage Loan or any an REO Property pursuant to this Section 3.19 shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow and shall be on a sale for other consideration)servicing released basis. (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (CWCapital Commercial Funding Corp.)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto may Master Servicer, the Special Servicer or the Trustee shall sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only (i) on the terms and subject to the conditions set forth in this Section 3.18 or 3.19, (ii) as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.019.01 of this Agreement, (iii) in the case of the Loan Combinations, subject to the requirements of, and Companion Loan Noteholder rights set forth in, the related Co-Lender Agreement, and (iv) in the case of a Mortgage Loan with a related mezzanine loan, in connection with a Mortgage Loan default as set forth in the related intercreditor agreement. (b) [If The Special Servicer, any single Holder or any group of Certificateholders evidencing a majority of the Voting Rights allocated to the Controlling Class and any assignees (other than an assignee whose purchase of such Specially Serviced Mortgage Loan would violate the terms of any related mezzanine loan intercreditor agreement or Co-Lender Agreement) of the foregoing parties (collectively, the "Purchase Option Holders") shall each have the option to purchase a Specially Serviced Mortgage Loan at a cash price that is at least equal to the Purchase Price. In addition, if such Specially Serviced Mortgage Loan is part of a Loan Combination as to which there is a Pari Passu Companion Loan that has been securitized, the Special Servicer has determined, in shall also send a copy of the notice described above to the trustee under the related pooling and servicing agreement. (c) If none of the Purchase Option Holders exercises its good faith and reasonable judgment, that option to purchase any Defaulted Specially Serviced Mortgage Loan as described in subsection (b) above, then each Purchase Option Holder (other than an assignee whose purchase of such Specially Serviced Mortgage Loan would violate the terms of any related mezzanine loan intercreditor agreement or co-lender agreement) will become also have the subject option to purchase that Specially Serviced Mortgage Loan at a price equal to the fair value of such Specially Serviced Mortgage Loan (the "FV Price"). Any single Certificateholder or group of Certificateholders evidencing a majority of the Voting Rights allocated to the Controlling Class shall have the exclusive right to purchase the related Specially Serviced Mortgage Loan for sixty (60) days after receipt of the Special Servicer's report of such FV Price. Upon receipt of a foreclosure sale or similar proceeding, and that request from any Purchase Option Holder to determine the sale FV Price in contemplation of such its intention to exercise its option to purchase a Specially Serviced Mortgage Loan under at a price that is below the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing StandardPurchase Price, the Special Servicer shall promptly so notify obtain an MAI appraisal of the related Mortgaged Property by an Independent Appraiser (unless such an appraisal was obtained within one year of such date and the Special Servicer has no knowledge of any circumstances that would materially affect the validity of such appraisal). Promptly after obtaining such appraisal, the Special Servicer shall determine the FV Price in writing accordance with the Servicing Standard and the provisions of subsection (i) below. Promptly after determining the FV Price, the Special Servicer shall report such FV Price to the Trustee and each Purchase Option Holder. With respect to any Serviced Loan Combination, the Master ServicerPurchase Option Holders will only have the right to purchase the related Loan Combination Trust Mortgage Loan. With respect to each such Specially Serviced Mortgage Loan that is part of a Loan Combination as to which there is a Pari Passu Companion Loan that has been securitized, the Special Servicer shall also send a copy of the notice containing the FV Price described above to the parties under the related pooling and servicing agreement that have the equivalent rights as the Purchase Option Holders under this Agreement. With respect to each of the Non-Serviced Trust Loans, this Section 3.19 shall be subject to the terms of the related Lead PSA and Co-Lender Agreement, provided that any rights of any Persons to exercise its option to purchase such Loan Combination Trust Mortgage Loans shall be calculated in accordance with the terms of the related Lead PSA and the Trustee shall, within 10 days after receipt related Co-Lender Agreement by the parties specified therein (and the Trust shall sell such Loan Combination Trust Mortgage Loan in compliance with such terms). Any proceeds from such sale of a Non-Serviced Trust Loan pursuant to the exercise of such noticeoption shall be treated for purposes of this Agreement in the same manner as funds received in connection with the sale of any Serviced Loan Combination Trust Mortgage Loan in accordance with the provisions of this Section 3.19. (d) In the event that the Special Servicer determines that it is willing, notify all or another Purchase Option Holder notifies the Certificateholders of Special Servicer that it is willing, to purchase any Specially Serviced Mortgage Loan (the Controlling Class. The Majority Certificateholder of party submitting such bid, the Controlling Class may at its option purchase from the Trust, "Initial Bidder") at a price equal to or above the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase FV Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchasea "FV Bid"), the Special Servicer shall deliver notify all other Purchase Option Holders that it has made or received, as the related Servicing File to case may be, such FV Bid (without disclosing the Certificateholder(s) effecting amount of such purchase (or any designee thereofFV Bid). (c) If . All other Purchase Option Holders may submit competing bids within the Majority Certificateholder ten Business Day period following such notice. At the conclusion of the Controlling Class has not purchased any Defaulted Mortgage Loan above-described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option purchase such Mortgage Loan from the Trust, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the Trust. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the Trustten Business Day period, the Special Servicer shall accept the highest cash offer bid received from any Person Purchase Option Holder that constitutes is at least equal to the FV Price. (e) If the Special Servicer accepts the bid of any Purchase Option Holder, such Purchase Option Holder shall be required to purchase the subject Specially Serviced Mortgage Loan within ten (10) Business Days of receipt of notice of such acceptance. (f) If the Special Servicer has not accepted a FV Bid prior to the expiration of one hundred twenty (120) days from the Special Servicer's most recent determination of the FV Price and thereafter receives a FV Bid or a request from a Purchase Option Holder for an updated FV Price, the Special Servicer shall within forty-five (45) days recalculate the FV Price (with no presumption that such FV Price should be reduced on account of the lack of an FV Bid) and repeat the notice and bidding procedure provided in subsection (d) above until the purchase option terminates under subsection (j) below. In connection with such recalculation, the Special Servicer may obtain an updated Appraisal if it determines that market conditions or conditions at the mortgaged property warrant an updated Appraisal. In addition, the Special Servicer shall recalculate the FV Price of any Mortgage Loan if there has been a material change in circumstances of which the Special Servicer is aware or the Special Servicer has received new information, either of which has a material effect on the fair price value. (g) If the party exercising the purchase option at the FV Price for any Specially Serviced Mortgage Loan is the Special Servicer or an Affiliate thereof, the Trustee shall verify that the FV Price is at least equal to the fair value of such Mortgage Loan. In determining whether the absence FV Price is at least equal to the fair value of such Mortgage Loan the Trustee will be permitted to conclusively rely on an appraisal obtained by the Trustee from an Independent Appraiser at the time it is required to verify the FV Price and/or the opinion of an Independent expert in real estate matters (including the Master Servicer) with at least five (5) years' experience in valuing or investing in loans, similar to such Mortgage Loan, that has been selected by the Trustee with reasonable care at the expense of the Trust Fund. (h) Any Purchase Option Holder may, once such option is exercisable, assign its purchase option with respect to any offer determined as provided below Specially Serviced Mortgage Loan to a third party other than another Purchase Option Holder or any Person whose purchase of such Specially Serviced Mortgage Loan would violate any restrictions contained in any mezzanine intercreditor agreement or any Co-Lender Agreement and upon such assignment such third party shall have all of the rights that had been granted to the Purchase Option Holder hereunder in respect of the purchase option. Such assignment shall only be faireffective upon written notice (together with a copy of the executed assignment and assumption agreement) being delivered to the Trustee, the Master Servicer and the Special Servicer. (i) Subject to Section 3.09 and the other provisions of this Section 3.19, in determining the FV Price for any Specially Serviced Mortgage Loan, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 andmay take into account, otherwiseamong other factors, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from results of any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes appraisal or updated appraisal that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and or the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted have obtained in accordance with this Agreement within the preceding prior twelve (12-month period or, ) months; the opinions on fair value expressed by Independent investors in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition mortgage loans comparable to the results of any Appraisal, updated Appraisal or narrative Appraisal that it may have obtained pursuant to this Agreement within the prior 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such subject Specially Serviced Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, Loan; the period and amount of any delinquency on the affected subject Specially Serviced Mortgage Loan, ; the occupancy level and physical condition of the related Mortgaged Property or REO Property, ; the state of the local economy economy; and the obligation to dispose of any REO Property within expected recoveries from the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted subject Specially Serviced Mortgage Loan if the Special Servicer were to pursue a workout or REO Property unless foreclosure strategy instead of selling such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed to a fair pricePurchase Option Holder. (fj) Subject The purchase option for any Specially Serviced Mortgage Loan pursuant to Sections 3.18(athis Section 3.19 shall terminate, and shall not be exercisable as set forth in subsections (b) through 3.18(eand (c) aboveabove (or if exercised, but the Special Servicer shall act on behalf purchase of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted subject Mortgage Loan has not yet occurred, shall terminate and be of no further force or effect) if and when (i) such Specially Serviced Mortgage Loan has become a Corrected Mortgage Loan, (ii) the related Mortgaged Property has become an REO Property, Property or (iii) a Final Recovery Determination has been made with respect to such Specially Serviced Mortgage Loan. (k) Until such time as an FV Bid is accepted and the collection of all amounts payable related Specially Serviced Mortgage Loan is sold 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 shall continue to such sales or evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto and any customary closing matters), and if such sale is consummated in accordance with the terms of this Agreement, none pursue all of the Special Servicer, the Master Servicer or the Trustee shall have any liability other resolution options available to any Certificateholder it with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (g) Any sale of a Defaulted Specially Serviced Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard. (l) Notwithstanding anything to the contrary herein, that rejection of such offer would be in the best interests holders of the Certificateholders, and related Companion Loan shall be entitled to purchase the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, related Loan Combination Trust Mortgage Loans in accordance with the Servicing Standard, that acceptance of such offer would be terms and conditions set forth in the best interests related Co-Lender Agreement, even after it has been purchased out of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely Trust Fund pursuant to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable)this Section 3.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (COBALT CMBS Commercial Mortgage Trust 2007-C2)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 and 9.01. (b) [If the Special Servicer has determined, in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standard, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling Class. The Majority Certificateholder of the Controlling Class may at its option purchase from the TrustTrust Fund, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof). (c) If the Majority Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustTrust Fund. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the TrustTrust Fund, the Special Servicer shall accept the highest cash offer received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor the Fiscal Agent, each in its respective individual capacity, nor any of its their respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is not making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers offer of the Interested Persons Person or any Affiliates thereofAffiliate) have been received from Independent third parties reflecting prices less than the related Purchase Priceparties. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust Fund (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 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. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Capital Funding Inc)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a), 2.02(b) and 9.01. (b) [If Subject to Sections 2.03(a) and 2.02(b), if the Special Servicer has determined, determined in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee Trustee, following its receipt of such notice, shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling ClassMajority Subordinate Certificateholder. The Majority Subordinate Certificateholder of the Controlling Class may at its option purchase from the TrustTrust Fund, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof)Majority Subordinate Certificateholder. (c) If the Majority Subordinate Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 30 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Master Servicer or the Special Servicer or, subject (with preference given to the Special Servicer's prior rights in such regard, the Master Servicer ) may at its option purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section Sections 3.18(b) or Section and 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustCertificateholders. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 10 days. Unless the Special Servicer determines that acceptance of any offer bid would not be in the best economic interests of the TrustCertificateholders, the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer bid determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard3.09. The Special Servicer shall use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneouslycontemporaneously or subsequently, the highest, provided that the Special Servicer is not obligated to the first bidder) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee(except as otherwise provided below in this Section 3.18(e)). In determining whether any offer bid received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee Special Servicer shall be supplied with and shall may rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared at the expense of the Trust Fund by a Qualified an Independent Appraiser, retained by the Special Servicer. (The Special Servicer may rely on a certification of any bidder to the effect that such bidder is not an Interested Person.) Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer not bidding with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee Master Servicer if the Special Servicer or an Affiliate thereof is making such an offerbidding. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When Where any Interested Person is among those making an offer bidding with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers bids be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered bid amount. In determining whether any offer bid from a Person other than an Interested Person or from an Interested Person other than the Special Servicer constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative Appraisal appraisal described above and any appraisal that it may have obtained pursuant to this Agreement within the prior 12 monthsSection 3.09(a)), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted such Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee for the benefit of the Trust Fund in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerorsbidders, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales or evaluating offers bids without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and final, without recourse to the Trustee or the Trust (except such recourse imposed by those Fund and without representations and warranties typically given in such transactionsof title and condition, any prorations applied thereto and any customary closing matters)unless liability for breach thereof is limited to recourse against the Trust Fund, and if such sale is consummated in accordance with the terms of this Agreement, none of neither the Special Servicer, the Master Servicer or nor the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the TrusteeServicer. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, unless changes in the REMIC Provisions or authoritative interpretations thereof made or issued subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding The Special Servicer shall not be obligated by any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated 3.18 to accept the highest cash offer bid if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer bid would be in the best interests of the Certificateholders. In addition, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) bid if it determines, in accordance with the Servicing Standard, that acceptance of such offer bid would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer bid is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer bid are more favorable).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.01. (b) [If Subject to Section 2.03(a), if the Special Servicer has determineddetermined in good faith, in its good faith and after making reasonable judgmentefforts to specially service such Defaulted Mortgage Loan, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee Trustee, following its receipt of such notice, shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling ClassMajority Subordinate Certificateholder. The Majority Subordinate Certificateholder of the Controlling Class may at its option purchase from the TrustTrust Fund, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof)Majority Subordinate Certificateholder. (c) If the Majority Subordinate Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 30 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Master Servicer or the Special Servicer or, subject (with preference given to the Special Servicer's prior rights in such regard, the Master Servicer ) may at its option purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in 115 each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Subject to Section 6.11, the Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section Sections 3.18(b) or Section and 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustTrust Fund. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 10 days. Unless the Special Servicer determines that acceptance of any offer bid would not be in the best economic interests of the TrustCertificateholders, the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer bid determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and3.09. Subject to Section 6.11, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneouslycontemporaneously or subsequently, the highest, provided that the Special Servicer is not obligated to the first bidder) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee(except as otherwise provided below in this Section 3.18(e)). In determining whether any offer bid received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee Special Servicer shall be supplied with and shall may rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative 116 appraisal prepared at the expense of the Trust Fund by a Qualified an Independent Appraiser, retained by the Special Servicer. (The Special Servicer may rely on a certification of any bidder to the effect that such bidder is not an Interested Person.) Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer not bidding with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee Master Servicer if the Special Servicer is bidding. (The Master Servicer shall not bid with respect to a Defaulted Mortgage Loan or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of REO Property if the Special Servicer, and shall constitute Servicer has informed it that the Special Servicer intends to submit a Servicing Advance. When bid.) Where any Interested Person is among those making an offer bidding with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers bids be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered bid amount. In determining whether any offer bid from a Person other than an Interested Person or from an Interested Person other than the Special Servicer constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative Appraisal appraisal described above and any appraisal that it may have obtained pursuant to this Agreement within the prior 12 monthsSection 3.09(a)), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the coverage of any Secured Creditor Impaired Property Policy, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). The Purchase Price for any such Mortgage Loan or REO Property shall in all cases be deemed a fair price. Notwithstanding the other provisions of this Section 3.183.18 (but excluding a purchase pursuant to Section 3.18(c)), no cash offer bid from any Interested Person the Master Servicer, Special Servicer or any Affiliate of their Affiliates thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer bid is the highest cash offer bid received and at least two additional offers independent bids (not including the offers bid of Interested Persons the Master Servicer, Special Servicer or any Affiliates thereofAffiliate) have been received. In the event the bid of the Special Servicer or any Affiliate is the only bid received from Independent third parties reflecting prices less than or is the related Purchase Pricehigher of only two bids received, then additional bids shall be solicited. The Purchase Price for If an additional bid or bids are received and the original bid of the Special Servicer or any Defaulted Mortgage Loan Affiliate is the highest of all bids received, then the bid of the Special Servicer or REO Property such Affiliate shall in all cases no longer be deemed not to constitute a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) aboveabove and Section 6.11, the Special Servicer shall act on behalf of the Trustee in negotiating with independent third parties and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerorsbidders, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales or evaluating offers bids without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and final, without recourse to the Trustee or the Trust (except such recourse imposed by those Fund and without representations and warranties typically given in such transactionsof title and condition, any prorations applied thereto and any customary closing matters)unless liability for breach thereof is limited to recourse against the Trust Fund, and if such sale is consummated in accordance with the terms of this Agreement, none of neither the Special Servicer, the Master Servicer or nor the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee.. 117 (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, unless changes in the REMIC Provisions or authoritative interpretations thereof made or issued subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding The Special Servicer shall not be obligated by any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated 3.18 to accept the highest cash offer bid if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer bid would be in the best interests of the Certificateholders. In addition, and the Special Servicer may accept a lower cash offer bid (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer bid would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer bid is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer bid are more favorable).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.02, 2.03 and 9.01. (b) [Reserved. (c) If the Special Servicer has determined, in its reasonable good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling Class. The Majority Certificateholder of the Controlling Class may at its option purchase from the Trust, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof). (c) If the Majority Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] above, either Either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option option, within 30 days after receipt of such notice, purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Collection Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustTrust Fund. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 10 days. Unless the Special Servicer determines that acceptance of any offer bid would not be in the best economic interests of the TrustTrust Fund, the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer bid determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard3.09. The Special Servicer shall use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneously, highest) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer bid is from an Interested Person, by the Trustee. In determining whether any offer bid received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall be entitled to rely on the most recent Appraisal or updated Appraisal in the related Servicing File conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by new Appraisal, or if the most recent Appraisal is not more than 12 months old but there has been a Qualified Appraisermaterial change in such Mortgaged Property or REO Property during the prior 12 months, retained on an updated Appraisal, in any case to be obtained by the Special ServicerServicer (the cost of which shall constitute a Servicing Advance). Such On making any such determination of fair price based on the Appraisal, the Trustee shall be entitled to retain and may rely on the determinations of professional consultants. The cost of any such consultants shall be an expense of the Trust Fund reimbursable to the Trustee from the funds on deposit in the Collection Account. The appraiser conducting any such new Appraisal shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer not bidding with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee Master Servicer if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced bidding and by the Trustee if both the Master Servicer, at the direction of Servicer and the Special Servicer, and shall constitute a Servicing AdvanceServicer are bidding. When Where any Interested Person is among those making an offer bidding with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers bids be submitted to it (and, if the Special Servicer is bidding, shall be submitted by it to the Trustee) in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered bid amount. In determining whether any offer bid from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months)described above, and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). The Purchase Price for any such Mortgage Loan or REO Property shall in all cases be deemed a fair price. Notwithstanding the other provisions of this Section 3.18, no cash offer bid from any Interested Person the Special Servicer or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer bid is the highest cash offer bid received and at least two additional offers independent bids (not including the offers bid of Interested Persons the Special Servicer or any Affiliates thereofAffiliate) have been received. In the event the bid of the Special Servicer or any Affiliate thereof is the only bid received from Independent third parties reflecting prices less than or is the related Purchase Pricehigher of only two bids received, then additional bids shall be solicited. The Purchase Price If an additional bid or bids, as the case may be, are received and the original bid of the Special Servicer or any Affiliate thereof is the highest of all cash bids received, then the bid of the Special Servicer or such Affiliate shall no longer be deemed not to constitute a fair price. A bid of the Special Servicer shall not be accepted in the absence of a determination by the Trustee, as provided above in this Section 3.18(e), that such bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property. Any bid by the Special Servicer shall be unconditional and if accepted the Defaulted Mortgage Loan or REO Property shall be transferred to the Special Servicer without recourse, representation or warranty other than customary representations as to title given in all cases be deemed connection with the sale of a fair pricemortgage loan or real property. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating with independent third parties and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerorsbidders, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales or evaluating offers bids without obligation to deposit such amounts into the Certificate Collection Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto and any customary closing matters)Fund, and if such sale is consummated in accordance with the terms of this Agreement, none of neither the Special Servicer, the Master Servicer or nor the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion except in the case of Counselthe Special Servicer, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer bid if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer bid would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer bid (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer bid would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer bid is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer bid are more favorable).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (DLJ Commercial Mortgage Corp)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only (i) on the terms and subject to the conditions set forth in this Section 3.18 or 3.18, (ii) as otherwise expressly provided in or contemplated by Sections 2.03 and 9.019.01 of this Agreement, (iii) in the case of the Split Mortgage Loans, as set forth in the related Loan Pair Co-Lender Agreement or Section 3.18(p), as applicable, and (iv) in the case of a Mortgage Loan with a related mezzanine loan, in connection with a Loan default as set forth in the related intercreditor agreement. (b) [If The Holder of Certificates evidencing the Special Servicer has determined, greatest percentage interest in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing StandardControlling Class, the Special Servicer shall promptly so notify in writing the Trustee and the Master ServicerMortgage Loan Seller (but in the case of a Loan Pair, and only to the Trustee extent that the Mortgage Loan Seller is not also the related Companion Loan Noteholder or its affiliate) (in such capacity, together with any assignee (which may not be, in the case of a Loan Pair, the related Companion Loan Noteholder as assignee of the Mortgage Loan Seller), but in any event excluding the Trustee, the "Purchase Option Holder") shall, within 10 days after receipt of such noticein that order, notify all have the Certificateholders of the Controlling Class. The Majority Certificateholder of the Controlling Class may right, at its option (the "Purchase Option"), to purchase a Mortgage Loan from the Trust, Trust at a price equal to the applicable Option Purchase Price, any Price (as defined below) upon receipt of notice from the Special Servicer that such Defaulted Mortgage LoanLoan has become a Specially Serviced Mortgage Loan as to which a monetary event of default has occurred or is reasonably foreseeable. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof). (c) If the Majority Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] above, either the Special Servicer orOption is exercisable, subject to Section 2.03, from that date until terminated pursuant to clause (f) below, and during that period the Special Servicer's prior rights Purchase Option shall be exercisable in such regard, any month only during the Master Servicer may at its option purchase such Mortgage Loan period from the Trust10th calendar day of such month through the 25th calendar day, at a price equal to the Purchase Priceinclusive, of such month. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests Trustee on behalf of the Trust. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the Trust, the Special Servicer shall accept the highest cash offer received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person Trust shall be obligated to submit an offer to purchase any sell such Mortgage Loan upon the exercise of the Purchase Option (whether exercised by the original holder thereof or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes by a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(dholder that acquired such Purchase Option by assignment), but shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any have no authority to sell such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale exercise of any Defaulted a Purchase Option (or other circumstances described in clause (a) above). Any Purchase Option Holder that exercises the Purchase Option shall be required to purchase the applicable Mortgage Loan or REO Propertyon the 4th Business Day after such exercise. If any Purchase Option Holder desires to waive its right to exercise the Purchase Option, then it shall so notify the Trustee in writing, and the collection Trustee shall promptly notify the next party eligible to hold the Purchase Option set forth above of all amounts payable its rights hereunder. Any of the parties eligible to hold the Purchase Option set forth above may at any time notify the Trustee in connection therewith. In connection therewith, writing of its desire to exercise the Special Servicer may charge prospective offerorsPurchase Option, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales or evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 or the Trustee shall have any liability promptly notify the current Purchase Option Holder (and the other parties eligible to any Certificateholder with respect to hold the purchase price therefor accepted by the Special Servicer or the Trustee. (gPurchase Option) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in party's desire to exercise the best interests Purchase Option. If the Purchase Option Holder, within 3 Business Days of its receipt of that notice, neither (i) exercises the CertificateholdersPurchase Option nor (ii) surrenders its right to exercise the Purchase Option, then the Purchase Option Holder's right to exercise the Purchase Option shall lapse, and the Special Servicer may accept a lower cash offer Trustee shall promptly notify the next party eligible to hold the Purchase Option (from any Person and the other than itself or an Affiliateparties eligible to hold the Purchase Option) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable)rights thereunder.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Greenwich Capital Commercial Fund Corp Comm Mort Tr 2003-C1)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.01. (b) [If Subject to Section 2.03(a), if the Special Servicer has determineddetermined in good faith, in its good faith and after making reasonable judgmentefforts to specially service such Defaulted Mortgage Loan, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee Trustee, following its receipt of such notice, shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling ClassMajority Subordinate Certificateholder. The Majority Subordinate Certificateholder of the Controlling Class may at its option purchase from the TrustTrust Fund, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof)Majority Subordinate Certificateholder. (c) If the Majority Subordinate Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 30 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Master Servicer or the Special Servicer or, subject (with preference given to the Special Servicer's prior rights in such regard, the Master Servicer ) may at its option purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer 113 or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Subject to Section 6.11, the Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section Sections 3.18(b) or Section and 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustTrust Fund. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 10 days. Unless the Special Servicer determines that acceptance of any offer bid would not be in the best economic interests of the TrustCertificateholders, the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer bid determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and3.09. Subject to Section 6.11, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneouslycontemporaneously or subsequently, the highest, provided that the Special Servicer is not obligated to the first bidder) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee(except as otherwise provided below in this Section 3.18(e)). In determining whether any offer bid received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee Special Servicer shall be supplied with and shall may rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared at the expense of the Trust Fund by a Qualified an Independent Appraiser, retained by the Special Servicer. The Special Servicer may rely on a certification of any bidder to the effect that such bidder is not an Interested Person. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer not bidding with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee Master Servicer if the Special Servicer or an Affiliate thereof is making such an offerbidding. The cost of any such narrative appraisal Master Servicer shall be advanced by the Master Servicer, at the direction of not bid with respect to a Defaulted Mortgage Loan or REO Property if the Special Servicer, and shall constitute Servicer has informed it that the Special Servicer intends to submit a Servicing Advancebid. When Where any Interested Person is among those making an offer bidding with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers bids be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered bid amount. In determining whether any offer bid from a Person other than an Interested Person or from an Interested Person other than the Special Servicer constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative Appraisal appraisal described above and any appraisal that it may have obtained pursuant to this Agreement within the prior 12 monthsSection 3.09(a)), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). The Purchase Price for any such Mortgage Loan or REO Property shall in all cases be deemed a fair price. Notwithstanding the other provisions of this Section 3.183.18 (but excluding a purchase pursuant to Section 3.18(c)), no cash offer bid from any Interested Person the Master Servicer, Special Servicer or any Affiliate of their Affiliates thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer bid is the highest cash offer bid received and at least two additional offers independent bids (not including the offers bid of Interested Persons the Master Servicer, Special Servicer or any Affiliates thereofAffiliate) have been received. In the event the bid of the Special Servicer or any Affiliate is the only bid received from Independent third parties reflecting prices less than or is the related Purchase Pricehigher of only two bids received, then additional bids shall be solicited. The Purchase Price for If an additional bid or bids are received and the original bid of the Special Servicer or any Defaulted Mortgage Loan Affiliate is the highest of all bids received, then the bid of the Special Servicer or REO Property such Affiliate shall in all cases no longer be deemed not to constitute a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) aboveabove and Section 6.11, the Special Servicer shall act on behalf of the Trustee in negotiating with independent third parties and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerorsbidders, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales or evaluating offers bids without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and final, without recourse to the Trustee or the Trust (except such recourse imposed by those Fund and without representations and warranties typically given in such transactionsof title and condition, any prorations applied thereto and any customary closing matters)unless liability for breach thereof is limited to recourse against the Trust Fund, and if such sale is consummated in accordance with the terms of this Agreement, none of 115 neither the Special Servicer, the Master Servicer or nor the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, unless changes in the REMIC Provisions or authoritative interpretations thereof made or issued subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding The Special Servicer shall not be obligated by any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated 3.18 to accept the highest cash offer bid if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer bid would be in the best interests of the Certificateholders. In addition, and the Special Servicer may accept a lower cash offer bid (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer bid would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer bid is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer bid are more favorable).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.019.01 of this Agreement. (b) [If The holder of Certificates evidencing the Special Servicer has determined, greatest percentage interest in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing StandardControlling Class, the Special Servicer shall promptly so notify in writing the Trustee and the Master ServicerMortgage Loan Seller (in such capacity, and together with any assignee, but in any event excluding the Trustee Trustee, the "Purchase Option Holder") shall, within 10 days after receipt of such noticein that order, notify all have the Certificateholders of the Controlling Class. The Majority Certificateholder of the Controlling Class may right, at its option (the "Purchase Option"), to purchase a Mortgage Loan from the Trust, Trust at a price equal to the applicable Option Purchase Price, Price (as defined below) upon receipt of notice from the Special Servicer that such Mortgage Loan has become at least 60 days delinquent as to any such Defaulted Mortgage Loanmonthly debt service payment (or is delinquent as to its Balloon Payment). The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof). (c) If the Majority Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] above, either the Special Servicer orOption is exercisable, subject to Section 2.03, from that date until terminated pursuant to clause (f) below, and during that period the Special Servicer's prior rights Purchase Option shall be exercisable in such regard, any month only during the Master Servicer may at its option purchase such Mortgage Loan period from the Trust10th calendar day of such month through the 25th calendar day, at a price equal to the Purchase Priceinclusive, of such month. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests Trustee on behalf of the Trust. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the Trust, the Special Servicer shall accept the highest cash offer received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person Trust shall be obligated to submit an offer to purchase any sell such Mortgage Loan upon the exercise of the Purchase Option (whether exercised by the original holder thereof or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes by a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(dholder that acquired such Purchase Option by assignment), but shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any have no authority to sell such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale exercise of any Defaulted an Purchase Option (or in connection with a repurchase of a Mortgage Loan under Article II, an optional termination pursuant to Section 9.01 or REO Propertya qualified liquidation of the REMICs. Any Purchase Option Holder that exercises the Purchase Option shall be required to purchase the applicable Mortgage Loan on the 4th Business Day after such exercise. If any Purchase Option Holder desires to waive its right to exercise the Purchase Option, then it shall so notify the Trustee in writing, and the collection Trustee shall promptly notify the next party eligible to hold the Purchase Option set forth above of all amounts payable its rights hereunder. Any of the parties eligible to hold the Purchase Option set forth above may at any time notify the Trustee in connection therewith. In connection therewith, writing of its desire to exercise the Special Servicer may charge prospective offerorsPurchase Option, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales or evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 or the Trustee shall have any liability promptly notify the current Purchase Option Holder (and the other parties eligible to any Certificateholder with respect to hold the purchase price therefor accepted by the Special Servicer or the Trustee. (gPurchase Option) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in party's desire to exercise the best interests Purchase Option. If the Purchase Option Holder, within 3 Business Days of its receipt of that notice, neither (i) exercises the CertificateholdersPurchase Option nor (ii) surrenders its right to exercise the Purchase Option, then the Purchase Option Holder's right to exercise the Purchase Option shall lapse, and the Special Servicer may accept a lower cash offer Trustee shall promptly notify the next party eligible to hold the Purchase Option (from any Person and the other than itself or an Affiliateparties eligible to hold the Purchase Option) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable)rights thereunder.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (CDC Commercial Mortgage Trust 2002-Fx1)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only (i) on the terms and subject to the conditions set forth in this Section 3.18 or 3.18, (ii) as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.019.01 of this Agreement, (iii) in the case of the _______________ Mortgage Loan, as set forth in Section 4.02 of the _______________ Co-Lender Agreement, and (iv) in the case of a Mortgage Loan with a related mezzanine loan, in connection with a Loan default as set forth in the related intercreditor agreement. (b) [If the Special Servicer has determined, in its good faith and reasonable judgment, that Within five Business Days after any Defaulted Serviced Mortgage Loan will has become the subject of a foreclosure sale or similar proceeding, and that the sale of such Specially Serviced Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing StandardLoan, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee shall, within 10 days after receipt give notice of such notice, notify all the Certificateholders event to each holder of a Certificate of the Controlling Class, the holder of the _______________ Companion Loan (if such Mortgage Loan is part of the _______________ Loan Pair) and the Trustee. The Majority Certificateholder Special Servicer, any single Holder or any group of Certificateholders evidencing a majority of the Voting Rights allocated to the Controlling Class may at its and any assignees of the foregoing parties (collectively, the "Purchase Option Holders") shall each have the option to purchase from the Trust, such Specially Serviced Mortgage Loan at a cash price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof). (c) If the Majority Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may is at its option purchase such Mortgage Loan from the Trust, at a price least equal to the Purchase Price. The Special Servicer shall accept the first offer by a Purchase Option Holder that is at least equal to the Purchase Price. (c) If none of the Purchase Option Holders exercises its option to purchase any Specially Serviced Mortgage Loan as described in subsection (b) above, then each Purchase Option Holder will also have the option to purchase that Specially Serviced Mortgage Loan at a price equal to the fair value of such Specially Serviced Mortgage Loan (the "FV Price"). Upon receipt of a request from any Purchase Option Holder to determine the FV Price in contemplation of its intention to exercise its option to purchase a Specially Serviced Mortgage Loan at a price that is below the Purchase Price, the Special Servicer shall promptly obtain an MAI appraisal of the related Mortgaged Property by an Independent Appraiser (unless such an appraisal was obtained within one year of such date and the Special Servicer has no knowledge of any circumstances that would materially affect the validity of such appraisal). Promptly after obtaining such appraisal, the Special Servicer shall determine the FV Price in accordance with the Servicing Standard and the provisions of subsection (i) below. Promptly after determining the FV Price, the Special Servicer shall report such FV Price to the Trustee and each Purchase Option Holder. (d) In the event that the Special Servicer determines that it is willing, or another Purchase Option Holder notifies the Special Servicer that it is willing, to purchase any Specially Serviced Mortgage Loan (the party submitting such bid, the "Initial Bidder") at a price equal to or above the FV Price (a "FV Bid"), the Special Servicer shall notify all other Purchase Option Holders that it has made or received, as the case may be, such FV Bid (without disclosing the amount of such FV Bid). All other Purchase Option Holders may submit competing bids within the ten Business Day period following such notice. At the conclusion of the above-described ten Business Day period, the Special Servicer shall accept the highest bid received from any Purchase Option Holder that is at least equal to the FV Price. (e) If the Special Servicer accepts the bid of any Purchase Option Holder, such Purchase Option Holder shall be required to purchase the subject Specially Serviced Mortgage Loan within ten Business Days of receipt of notice of such acceptance. (f) If the Special Servicer has not accepted a FV Bid prior to the expiration of 120 days from its determination of the FV Price and thereafter receives a FV Bid or a request from a Purchase Option Holder for an updated FV Price, the Special Servicer shall within 45 days recalculate the FV Price (with no presumption that such FV Price should be reduced on account of the lack of an FV Bid) and repeat the notice and bidding procedure provided in subsection (d) above until the purchase option terminates under subsection (j) below. (g) If the party exercising the purchase option at the FV Price for any Specially Serviced Mortgage Loan is the Special Servicer or an Affiliate thereof, the Trustee shall verify that the FV Price is at least equal to the fair value of such Mortgage Loan. In determining whether the FV Price is at least equal to the fair value of such Mortgage Loan purchased under the Trustee will be permitted to conclusively rely on an appraisal obtained by the Trustee from an Independent Appraiser at the time it is required to verify the FV Price and/or the opinion of an Independent expert in real estate matters (including the Master Servicer) with at least 5 years' experience in valuing or investing in loans, similar to such Mortgage Loan, that has been selected by the Trustee with reasonable care at the expense of the Trust Fund. (h) Any Purchase Option Holder may, once such option is exercisable, assign its purchase option with respect to any Specially Serviced Mortgage Loan to a third party other than another Purchase Option Holder and upon such assignment such third party shall have all of the rights that had been granted to the Purchase Option Holder hereunder in respect of the purchase option. Such assignment shall only be effective upon written notice (together with a copy of the executed assignment and assumption agreement) being delivered to the Trustee, the Master Servicer and the Special Servicer. (i) In determining the FV Price for any Specially Serviced Mortgage Loan, the Special Servicer may take into account, among other factors, the results of any appraisal or updated appraisal that it or the Master Servicer may have obtained in accordance with this paragraph Agreement within the prior twelve months; the opinions on fair value expressed by Independent investors in mortgage loans comparable to the subject Specially Serviced Mortgage Loan; the period and amount of any delinquency on the subject Specially Serviced Mortgage Loan; the physical condition of the related Mortgaged Property; the state of the local economy; and the expected recoveries from the subject Specially Serviced Mortgage Loan if the Special Servicer were to pursue a workout or foreclosure strategy instead of selling such Mortgage Loan to a Purchase Option Holder. (j) The purchase option for any Specially Serviced Mortgage Loan pursuant to this Section 3.18 shall terminate, and shall not be exercisable as set forth in subsections (b) and (c) above (or if exercised, but the purchase of the subject Mortgage Loan has not yet occurred, shall terminate and be of no further force or effect) if (i) the Special Servicer has accepted a FV Bid, (ii) if such Specially Serviced Mortgage Loan has become a Corrected Mortgage Loan, (iii) the related Mortgaged Property has become an REO Property or (iv) a Final Recovery Determination has been made with respect to such Specially Serviced Mortgage Loan. (k) Until such time as a FV Bid is accepted, the Special Servicer shall continue to pursue all of the other resolution options available to it with respect to the Specially Serviced Mortgage Loan in accordance with the Servicing Standard. (l) Notwithstanding anything to the contrary herein, the holders of the _______________ Companion Loan shall be deposited into entitled to purchase the Certificate Account, respective Mortgage Loan that is part of the same Loan Pair in accordance with the terms and conditions set forth in Section 4.02 of the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the _______________ Co-Lender Agreement. The Master Servicer or the Special Servicer, as applicable, shall determine the related Mortgage File, and shall execute and deliver such instruments price to be paid in accordance with the terms of transfer or assignment, the respective Co-Lender Agreement in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase and shall provide such notices to the respective Companion Loan Noteholders as are required by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicerrespective Co-Lender Agreements in connection with such holders' purchase rights. (dm) The Special Servicer may offer to sell any Defaulted Any purchase of a Specially Serviced Mortgage Loan not otherwise that is purchased pursuant to this Section 3.18(b) or Section 3.18(c) above3.18 will remain subject to the cure and purchase rights of, in each case if and when applicable, the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be _______________ Companion Loan Noteholder as set forth in the best economic interests _______________ Co-Lender Agreement and any holder of the Trust. Such offer shall be made a related mezzanine loan in connection with a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be Loan default as set forth in the best economic interests of the Trust, the Special Servicer shall accept the highest cash offer received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. related intercreditor agreement. (n) The Special Servicer shall use its best efforts to solicit offers bids for each Administered REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Subject to Sections 6.11 and 6.11A, the Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneouslycontemporaneously or subsequently, the highest) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any Administered REO Property within the time constraints imposed by Section 3.16(a), then (subject to Section 6.11 or 6.11A, as applicable) the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. . (o) The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' Depositor prior written notice of its intention to sell any Defaulted Mortgage Loan or Administered REO Property pursuant to this Section 3.18(d). 3.18. (p) No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or Administered REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any Administered REO Property pursuant hereto. (eq) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or Administered REO Property, as the case may be, Property for purposes of this Section 3.18(d)3.18, shall be determined by the Special Servicer or, if such cash offer bid is from an Interested Person, by the Trustee. In determining whether any offer bid received from an Interested Person represents a fair price for any such Mortgage Loan or Administered REO Property, the Trustee shall be supplied with and shall be entitled to rely on the most recent Appraisal or updated Appraisal appraisal in the related Servicing File conducted in accordance with this Agreement within the preceding 12-month period (or, in the absence of any such Appraisalappraisal or if there has been a material change at the subject property since any such appraisal, on a narrative new appraisal prepared by a Qualified Appraiser, retained to be obtained by the Special Servicer. Such appraiser Servicer (the cost of which shall be covered by, and be reimbursable as, a Servicing Advance)). The appraiser conducting any such new appraisal shall be an Independent Appraiser selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer bidding with respect to a Defaulted Mortgage Loan or an Administered REO Property and shall be selected by the Trustee if either the Special Servicer or an any Affiliate thereof is making such an offerso bidding. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When Where any Interested Person is among those making an offer bidding with respect to a Defaulted Mortgage Loan or an Administered REO Property, the Special Servicer shall require that all offers bids be submitted to it (and, if the Special Servicer or any Affiliate thereof is bidding, to the Trustee) in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered bid amount. In determining whether any offer bid from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or Administered REO Property, the Special Servicer shall take into account (in addition to the results of any Appraisal, appraisal or updated Appraisal or narrative Appraisal appraisal that it or the Master Servicer may have obtained pursuant to in accordance with this Agreement within the prior 12 twelve months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters Independent Appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or subject REO Property, the state of the local economy and the obligation to dispose of any the subject REO Property within the time period specified in Section 3.16(a). The Purchase Price for any Administered REO Property shall in all cases be deemed a fair price. Notwithstanding the other provisions of this Section 3.18, no cash offer bid from any Interested Person the Special Servicer or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or Administered REO Property unless such offer bid is the highest cash offer bid received and at least two additional offers independent bids (not including the offers bid of Interested Persons the Special Servicer or any Affiliates thereofAffiliate) have been received. In the event the bid of the Special Servicer or any Affiliate thereof is the only bid received from Independent third parties reflecting prices less than or is the related Purchase Pricehigher of only two bids received, then additional bids shall be solicited. The Purchase Price If an additional bid or bids, as the case may be, are received and the original bid of the Special Servicer or any Affiliate thereof is the highest of all cash bids received, then the bid of the Special Servicer or such Affiliate shall be accepted, provided that the Trustee has otherwise determined, as provided above in this Section 3.18(q), that such bid constitutes a fair price for any Defaulted Mortgage Loan or Administered REO Property. Any bid by the Special Servicer shall be unconditional; and, if accepted, the subject Administered REO Property shall be transferred to the Special Servicer without recourse, representation or warranty other than customary representations as to title given in all cases be deemed connection with the sale of a fair pricereal property. (fr) Subject to Sections 3.18(a) through 3.18(e3.18(q) above, and further subject to Section 6.11 and Section 6.11A, the Special Servicer shall act on behalf of the Trustee in negotiating with independent third parties seeking to purchase an Administered REO Property and taking any other action necessary or appropriate in connection with the sale of any Defaulted Specially Serviced Mortgage Loan or Administered REO PropertyProperty pursuant to this Section 3.18, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerorsbidders for any Administered REO Property, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales to, or evaluating offers bids for, such Administered REO Property without obligation to deposit such amounts into the Certificate Pool Custodial Account. Any sale of a Defaulted Specially Serviced Mortgage Loan or any an Administered REO Property pursuant to this Section 3.18 shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto and any customary closing matters)Trust, and if such sale is consummated in accordance with the terms of this Agreement, none of neither the Special Servicer, the Master Servicer or nor the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (gs) Any sale of a Defaulted Specially Serviced Mortgage Loan or any an Administered REO Property pursuant to this Section 3.18 shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow and shall be on a sale for other consideration)servicing released basis. (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Structured Asset Securities Corp Ii)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.01. (b) [If Subject to Section 2.03(a), if the Special Servicer has determined, determined in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee Master Servicer, following its receipt of such notice, shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling ClassMajority Subordinate Certificateholder. The Majority Subordinate Certificateholder of the Controlling Class may at its option purchase from the TrustTrust Fund, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof)Majority Subordinate Certificateholder. (c) If the Majority Subordinate Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 30 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Master Servicer or the Special Servicer or, subject (with preference given to the Special Master Servicer's prior rights in such regard, the Master Servicer ) may at its option purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section Sections 3.18(b) or Section and 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustTrust Fund. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 10 days. Unless the Special Servicer determines that acceptance of any offer bid would not be in the best economic interests of the TrustTrust Fund, the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer bid determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard3.09. The Special Servicer shall use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneously, highest) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five three Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee(except as otherwise provided below in this Section 3.18(e)). In determining whether any offer bid received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee Special Servicer shall be supplied with and shall may rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared at the expense of the Trust Fund by a Qualified Appraiseran Independent MAI-designated appraiser, retained by the Special Servicer, and who has a minimum of five years of experience in the subject property type and market. (The Special Servicer may rely on a certification of any bidder to the effect that such bidder is not an Interested Person.) Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer not bidding with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee Master Servicer if the Special Servicer is bidding. (The Special Servicer shall not bid with respect to a Defaulted Mortgage Loan or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by REO Property if the Master Servicer, at Servicer has informed it that the direction of the Special Servicer, and shall constitute Master Servicer intends to submit a Servicing Advance. When bid.) Where any Interested Person is among those making an offer bidding with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers bids be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered bid amount. In determining whether any offer bid from a Person other than an Interested Person or from an Interested Person other than the Special Servicer constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative Appraisal appraisal described above and any appraisal that it may have obtained pursuant to this Agreement within the prior 12 monthsSection 3.09(a)), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). The Purchase Price for any such Mortgage Loan or REO Property shall in all cases be deemed a fair price. Notwithstanding the other provisions of this Section 3.18, no cash offer bid from any Interested Person the Special Servicer or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer bid is the highest cash offer bid received and at least two additional offers independent bids (not including the offers bid of Interested Persons the Special Servicer or any Affiliates thereofAffiliate) have been received. In the event the bid of the Special Servicer or any Affiliate is the only bid received from Independent third parties reflecting prices less than or is the related Purchase Pricehigher of only two bids received, then additional bids shall be solicited. The Purchase Price for If an additional bid or bids are received and the original bid of the Special Servicer or any Defaulted Mortgage Loan Affiliate is the highest of all bids received, then the bid of the Special Servicer or REO Property such Affiliate shall in all cases be deemed to constitute a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerorsbidders, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales or evaluating offers bids without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto and any customary closing matters)Fund, and if such sale is consummated in accordance with the terms of this Agreement, none of neither the Special Servicer, the Master Servicer or nor the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, unless changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding The Special Servicer shall not be obligated by any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated 3.18 to accept the highest cash offer bid if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer bid would be in the best interests of the Certificateholders. In addition, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) bid if it determines, in accordance with the Servicing Standard, that acceptance of such offer bid would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer bid is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer bid are more favorable).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a), 2.02(b) and 9.01. (b) [If Subject to Sections 2.03(a) and 2.02(b), if the Special Servicer has determined, determined in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee Trustee, following its receipt of such notice, shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling ClassMajority Subordinate Certificateholder. The Majority Subordinate Certificateholder of the Controlling Class may at its option purchase from the TrustTrust Fund, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof)Majority Subordinate Certificateholder. (c) If the Majority Subordinate Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 30 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Master Servicer or the Special Servicer or, subject (with preference given to the Special Servicer's prior rights in such regard, the Master Servicer ) may at its option purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section Sections 3.18(b) or Section and 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustTrust Fund. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 10 days. Unless the Special Servicer determines that acceptance of any offer bid would not be in the best economic interests of the TrustTrust Fund, the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer bid determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard3.09. The Special Servicer shall use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneouslycontemporaneously or subsequently, the highest, provided that the Special Servicer is not obligated to the first bidder) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five three Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given as otherwise provided below in such transactions, any prorations applied thereto 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 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. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).Section

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section SECTION 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 SECTIONS 2.03(a) and 9.019.01 and, in the case of the Cherry Creek Mall Mortgage Loan, the Annapolis Mall Mortgage Loan, the Westfield Portfolio Mortgage Loan or the Sangertown Square Mortgage Loan, in Section 4.03 of the related Co-Lender and Servicing Agreement. (b) [If the Special Servicer has determined, determined in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and whereupon the Trustee shall, within 10 days after receipt of such notice, notify all each Controlling Class Certificateholder. Any Controlling Class Certificateholder may, at its option (with preference among such Holders being given to the Certificateholders Holder of Certificates representing the greatest Percentage Interest in the Controlling Class. The Majority Certificateholder ), at any time after its receipt of such notice and prior to the Controlling Class may at its option liquidation thereof, purchase any such Defaulted Mortgage Loan from the TrustTrust Fund, at a price equal to the applicable Purchase Price; PROVIDED that, if no Controlling Class Certificateholder has purchased any such Defaulted Mortgage LoanLoan within 10 Business Days after its receipt of such notice, then (i) for 5 Business Days following the expiration of such 10 Business Day period, its right to effect such purchase will be subordinate to the rights of the Master Servicer and the Special Servicer pursuant to SUBSECTION (c) below and (ii) thereafter, its right to effect such purchase will be of equal priority with the rights of the Special Servicer pursuant to SUBSECTION (c) below. The Purchase Price for any Mortgage Loan purchased under this paragraph SUBSECTION (b) shall be deposited into the Certificate Pool Custodial Account, ; and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) purchasing Controlling Class Certificateholder the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) Controlling Class Certificateholder ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(spurchasing Controlling Class Certificateholder. Notwithstanding the foregoing, if any Defaulted Mortgage Loan purchased pursuant to this SECTION 3.18(b) effecting such purchase (is the Cherry Creek Mall Mortgage Loan, the Annapolis Mall Mortgage Loan, the Westfield Portfolio Mortgage Loan or any designee thereof)the Sangertown Square Mortgage Loan, the release, endorsement or assignment of the documents constituting the related Mortgage File and Servicing File shall be in the manner contemplated by SECTION 3.26 hereof. (c) If the Majority Certificateholder of the no Controlling Class Certificateholder has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days 10 Business Days of its having received notice in respect thereof pursuant to Section SECTION 3.18(b)] ) above, either the Master Servicer or the Special Servicer or, subject (with preference given to the Special Servicer's prior rights in such regard, the Master Servicer ) may at its option option, at any time after the expiration of such 10 Business Day period and with priority over the Controlling Class Certificateholders for the first 5 Business Days following such 10 Business Day period, purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the Purchase Price. Following the expiration of such 5-Business Day Period, the Special Servicer and any Controlling Class Certificateholder shall have equal rights (with preference between such parties being given to the party that first notifies the Trustee in writing of its intention to purchase the subject Defaulted Mortgage Loan), in each case with priority over the Master Servicer to purchase any Defaulted Mortgage Loan at the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph SUBSECTION (c) shall be deposited into the Certificate Pool Custodial Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. Notwithstanding the foregoing, if any Defaulted Mortgage Loan purchased pursuant to this SECTION 3.18(c) is the Cherry Creek Mall Mortgage Loan, the Annapolis Mall Mortgage Loan, the Westfield Portfolio Mortgage Loan or the Sangertown Square Mortgage Loan, the release, endorsement or assignment of the documents constituting the related Mortgage File and Servicing File shall be in the manner contemplated by SECTION 3.26 hereof. (d) The Special Servicer Servicer, at any time, may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section SECTION 3.18(b) or Section SECTION 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustCertificateholders (as a collective whole). Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 10 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the TrustSubject to SECTIONS 3.18(h), 6.11 and 6.11A, the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price for such Mortgage Loan. In Notwithstanding the absence of foregoing, if any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan purchased pursuant to this SECTION 3.18(d) is the Cherry Creek Mall Mortgage Loan, the Annapolis Mall Mortgage Loan, the Westfield Portfolio Mortgage Loan or the Sangertown Square Mortgage Loan, the release, endorsement or assignment of the documents constituting the related Mortgage File and Servicing File shall be in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standardmanner contemplated by SECTION 3.26 hereof. The Special Servicer shall use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section SECTION 3.16(a). The Subject to SECTIONS 3.18(h), 6.11 and 6.11A, the Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneouslycontemporaneously or subsequently, the highest) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section SECTION 3.16(a), then (subject to SECTION 6.11 or 6.11A, as applicable) the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' Depositor prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section SECTION 3.18(d). No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section SECTION 3.18(d), shall be determined by the Special Servicer or, if such cash offer bid is from an Interested Person, by the Trustee. In determining whether any offer bid received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall be entitled to rely on the most recent Appraisal or updated Appraisal appraisal in the related Servicing File conducted in accordance with this Agreement within the preceding 12-month period (or, in the absence of any such Appraisalappraisal or if there has been a material change at the subject property since any such appraisal, on a narrative new appraisal prepared by a Qualified Appraiser, retained to be obtained by the Special Servicer. Such appraiser Servicer (the cost of which shall be covered by, and be reimbursable as, a Servicing Advance)). The appraiser conducting any such new appraisal shall be an Independent Appraiser selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer bidding with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if either the Special Servicer or an any Affiliate thereof is making such an offerso bidding. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When Where any Interested Person is among those making an offer bidding with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers bids be submitted to it (and, if the Special Servicer or any Affiliate thereof is bidding, to the Trustee) in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered bid amount. In determining whether any offer bid from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition to the results of any Appraisal, appraisal or updated Appraisal or narrative Appraisal appraisal that it or the Master Servicer may have obtained pursuant to in accordance with this Agreement within the prior 12 twelve months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters Independent Appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section SECTION 3.16(a). The Purchase Price for any such Mortgage Loan or REO Property shall in all cases be deemed a fair price. Notwithstanding the other provisions of this Section SECTION 3.18, no cash offer bid from any Interested Person the Special Servicer or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer bid is the highest cash offer bid received and at least two additional offers independent bids (not including the offers bid of Interested Persons the Special Servicer or any Affiliates thereofAffiliate) have been received. In the event the bid of the Special Servicer or any Affiliate thereof is the only bid received from Independent third parties reflecting prices less than or is the related Purchase Pricehigher of only two bids received, then additional bids shall be solicited. The Purchase Price If an additional bid or bids, as the case may be, are received and the original bid of the Special Servicer or any Affiliate thereof is the highest of all cash bids received, then the bid of the Special Servicer or such Affiliate shall be accepted, PROVIDED that the Trustee has otherwise determined, as provided above in this SECTION 3.18(e), that such bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property. Any bid by the Special Servicer shall be unconditional; and, if accepted, the Defaulted Mortgage Loan or REO Property shall be transferred to the Special Servicer without recourse, representation or warranty other than customary representations as to title given in all cases be deemed connection with the sale of a fair pricemortgage loan or real property. (f) Subject to Sections SECTIONS 3.18(a) through 3.18(e) above, SECTION 6.11 and SECTION 6.11A, the Special Servicer shall act on behalf of the Trustee in negotiating with independent third parties and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerorsbidders, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales or evaluating offers bids without obligation to deposit such amounts into the Certificate Pool Custodial Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto and any customary closing matters)Trust, and if such sale is consummated in accordance with the terms of this Agreement, none of neither the Special Servicer, the Master Servicer or nor the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee. (g) Any sale of a Defaulted Mortgage Loan or any REO Property pursuant to this SECTION 3.18 shall be for cash only (unless, as evidenced by an Opinion and shall be on a servicing released basis. The provisions of Counsel, changes this SECTION 3.18 shall in no way limit the REMIC Provisions made subsequent obligations of the Special Servicer to proceed with respect to any Specially Serviced Loan in accordance with SECTION 3.09 at the Startup Day allow a same time that such Mortgage Loan may be offered or eligible for sale for other consideration)in accordance with this SECTION 3.18. (h) Notwithstanding any of the foregoing paragraphs of this Section SECTION 3.18, the Special Servicer shall not be obligated to accept the highest cash offer bid if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer bid would be in the best interests of the CertificateholdersCertificateholders (as a collective whole) (or, in the case of an REO Property that relates to a Loan Pair, the best interests of the Certificateholders and the applicable Companion Loan Noteholder (as a collective whole)). In addition, the Special Servicer may may, subject to SECTION 6.11 or 6.11A, as applicable, accept a lower cash offer bid (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer bid would be in the best interests of the Certificateholders (as a collective whole) (or, in the case of an REO Property that relates to a Loan Pair, the best interests of the Certificateholders and the applicable Companion Loan Noteholder (as a collective whole)) (for example, if the prospective buyer making the lower offer bid is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer bid are more favorable).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Structured Asset Sec Corp Com Mort Pas THR Certs Ser 2000-C3)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.01. (b) [If Subject to Section 2.03(a), if the Special Servicer has determined, determined in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee Trustee, following its receipt of such notice, shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling ClassMajority Subordinate Certificateholder. The Majority Subordinate Certificateholder of the Controlling Class may at its option purchase from the TrustTrust Fund, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof). (c) If the Majority Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option purchase such Mortgage Loan from the Trust, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the Trust. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the Trust, the Special Servicer shall accept the highest cash offer received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 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. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).such

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a) and 9.018.01. (b) [If the Special Servicer has determined, in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of proceedings (other than any such Defaulted Mortgage Loan under the circumstances provided that it determines, in this Section 3.18(b) or in Section 3.18(c) its reasonable good faith judgment, is in accordance with the Servicing Standarddefault to avoid pre-payment restrictions), the Special Servicer shall promptly so notify in writing the Owner Trustee, the Indenture Trustee and the Master Servicer, and the Trustee shallMaster Servicer may at its option or, within 10 days after receipt of if the Master Servicer does not exercise such noticeoption, notify all the Certificateholders of the Controlling Class. The Majority Certificateholder of the Controlling Class Special Servicer may at its option purchase from the Owner Trust, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage LoanLoan free and clear of the lien of the Indenture. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Collection Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to made (which the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Master Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting Indenture Trustee and the Owner Trustee promptly after such purchase (or any designee thereofdeposit is made). (c) If the Majority Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described , together with a request for release in the first sentence form of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regardExhibit B-1, the Master Servicer may at its option purchase such Mortgage Loan from the Trust, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, Indenture Trustee shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, Loan File and each of the Owner Trust and the Indenture Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (c) If neither the Master Servicer nor the Special Servicer has purchased any Defaulted Mortgage Loan within 30 days of the receipt by the Master Servicer of notice in respect thereof pursuant to Section 3.18(b) above, the Master Servicer shall, within 10 days after the end of such 30-day period (or after the waiver by the Master Servicer and the Special Servicer of any such purchase rights), so notify the Indenture Trustee, which shall in turn so notify the Majority Holder of the Controlling Class, and such holder may at its option purchase such Defaulted Mortgage Loan from the Owner Trust within 30 days after its receipt of such notice, free and clear of the lien of the Indenture, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Collection Account, and upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made (which the Master Servicer shall deliver to the Indenture Trustee and the Owner Trustee promptly after such deposit is made), together with a request for release in the form of Exhibit B-1, the Indenture Trustee shall release or cause to be released to the Person effecting such purchase the related Mortgage Loan File and each of the Owner Trust and the Indenture Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be provided to it and are reasonably necessary to vest in such Person the ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Person effecting such purchase. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustBondholders. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the Owner Trust) for a period of not less than 30 10 days. Unless the Special Servicer determines that acceptance of any offer bid would not be in the best economic interests of the Trust, the Special Servicer shall accept the highest cash offer received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 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. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).the

Appears in 1 contract

Samples: Servicing Agreement (Imh Assets Corp Impac CMB Trust 1998 C1 Col Mor Bond 1998 C1)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.02, 2.03 and 9.01. (b) [If the Special Servicer has determined, in its reasonable good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, proceedings and that the sale of such Mortgage Loan under the circumstances provided described in this Section 3.18(b) or in Section 3.18(c) 3.18 is in accordance with the Servicing Standard, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee shall, within 10 5 days after receipt of such notice, notify all the Certificateholders of the Majority Controlling ClassClass Certificateholder. The Majority Controlling Class Certificateholder may, at its option, within 30 days after receipt of such notice, purchase (or designate an Affiliate thereof to purchase) any such Defaulted Mortgage Loan out of the Controlling Class may at its option purchase from the Trust, Trust Fund at a cash price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Defaulted Mortgage Loan purchased under this paragraph (bSection 3.18(b) shall be deposited into the Certificate Collection Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) Certificateholder effecting such purchase (or any its designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (Certificateholder or any its designee thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) Certificateholder effecting such purchase (or any designee thereof)its designee. (c) If the Majority Certificateholder of the Controlling Class Certificateholder has not purchased (or caused the purchase of) any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 30 days of its having received notice in respect thereof pursuant to Section 3.18(b)] above) above or has specifically waived in writing its right to purchase such Defaulted Mortgage Loan, then the Trustee shall within 5 days of the end of such 30-day period or within 5 days following its receipt of such waiver send notice to the Servicer and the Special Servicer that such Majority Certificateholder has not purchased such Mortgage Loan, and either the Special Servicer oror the Servicer (in that order of preference) may, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option option, within 30 days after receipt of such notice, purchase (or designate an Affiliate thereof to purchase) such Mortgage Loan from out of the Trust, Trust Fund at a cash price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (cSection 3.18(c) shall be deposited into the Certificate Collection Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special ServicerServicer (or the designated Affiliate thereof), as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special ServicerServicer (or the designated Affiliate thereof), as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master ServicerServicer (or any Affiliate thereof), the Special Servicer shall deliver the related Servicing File to the Master ServicerServicer (or such Affiliate thereof). (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustCertificateholders (as a collective whole). Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 10 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the TrustSubject to Section 3.18(h), the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer bid determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard3.09. The Special Servicer shall use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor any of its respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 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. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).by

Appears in 1 contract

Samples: Pooling and Servicing Agreement (DLJ Commercial Mort Corp Comm Mort Pass THR Cer Ser 1998-Cg1)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto Master Servicer, the Special Servicer or the Trustee may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 2.03(a), 2.02(b) and 9.01. (b) [If Subject to Sections 2.03(a) and 2.02(b), if the Special Servicer has determined, determined in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a to foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standardproceedings, the Special Servicer shall promptly so notify in writing the Trustee Trustee, the Majority Subordinate Certificateholder and the Master Servicer, and the Trustee shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling Class. The Majority Subordinate Certificateholder of the Controlling Class may at its option purchase from the TrustTrust Fund, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) Majority Subordinate Certificateholder ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof)Majority Subordinate Certificateholder. (c) If the Majority Subordinate Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 30 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Master Servicer or the Special Servicer or, subject (with preference given to the Special Master Servicer's prior rights in such regard, the Master Servicer ) may at its option purchase such Mortgage Loan from the TrustTrust Fund, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the TrusteeCustodian, upon receipt of an Officer's Officers' Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may may, subject to Section 6.11, offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section Sections 3.18(b) or Section and 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the TrustCertificateholders. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition title and similar customary matterscondition, if liability for breach thereof is limited to recourse against the TrustTrust Fund) for a period of not less than 30 10 days. The Majority Subordinate Certificateholder, the Master Servicer and the Special Servicer may offer to purchase any such Specially Serviced Mortgage Loan or REO Property pursuant to this Section 3.18(d). Unless the Special Servicer determines that acceptance of any offer bid would not be in the best economic interests of the TrustCertificateholders, the Special Servicer shall accept the highest cash offer bid received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer bid determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard3.09. The Special Servicer shall shall, subject to Section 6.11, use its best efforts to solicit offers bids for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers bids are received contemporaneouslycontemporaneously or subsequently, the highest, provided that the Special Servicer is not obligated to the first bidder) cash offer bid received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offerbid, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five three Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee Trustee, in its individual capacity, nor any of its respective Affiliates may make an offer bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer bid constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee(except as otherwise provided below in this Section 3.18(e)). In determining whether any offer bid received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee Special Servicer shall be supplied with and shall may rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared at the expense of the Trust Fund by a Qualified an Independent Appraiser, retained by the Special Servicer. The Special Servicer may rely on a certification of any bidder to the effect that such bidder is not an Interested Person. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer not bidding with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee Master Servicer if the Special Servicer is bidding, or if the Master Servicer and the Special Servicer are affiliated, by the Trustee; provided, if the Trustee selects an Affiliate thereof is making such MAI appraiser, the Trustee shall be deemed to have satisfied its obligation to select an offerappraiser. The cost of any such narrative appraisal Special Servicer shall be advanced by not bid with respect to a Defaulted Mortgage Loan or REO Property if the Master Servicer, at Servicer has informed it that the direction of the Special Servicer, and shall constitute Master Servicer intends to submit a Servicing Advancebid. When Where any Interested Person is among those making an offer bidding with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers bids be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered bid amount. In determining whether any offer bid from a Person other than an Interested Person or from an Interested Person other than the Special Servicer constitutes a fair price for any such Mortgage Loan or REO Property, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative Appraisal appraisal described above and any appraisal that it may have obtained pursuant to this Agreement within the prior 12 monthsSection 3.09(a)), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). The Purchase Price for any such Mortgage Loan or REO Property shall in all cases be deemed a fair price. Notwithstanding the other provisions of this Section 3.183.18 (but excluding a purchase pursuant to Section 3.18(c)), no cash offer bid from any Interested Person the Master Servicer, Special Servicer or any Affiliate of their Affiliates thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer bid is the highest cash offer bid received and at least two additional offers independent bids (not including the offers bid of Interested Persons the Master Servicer, Special Servicer or any Affiliates thereofAffiliate) have been received. In the event the bid of the Special Servicer or any Affiliate is the only bid received from Independent third parties reflecting prices less than or is the related Purchase Pricehigher of only two bids received, then additional bids shall be solicited. The Purchase Price for If an additional bid or bids are received and the original bid of the Special Servicer or any Defaulted Mortgage Loan Affiliate is the highest of all bids received, then the bid of the Special Servicer or REO Property such Affiliate shall in all cases be deemed to constitute a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee for the benefit of the Trust Fund in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, and the collection of all amounts payable in connection therewith. In connection therewiththerewith (other than in connection with a purchase by the Majority Subordinate Certificateholder where such Majority Subordinate Certificateholder is the Special Servicer or an Affiliate of the Special Servicer), the Special Servicer may charge prospective offerorsbidders, and may retain, fees that approximate the Special Servicer's actual costs in the preparation and delivery of information pertaining to such sales or evaluating offers bids without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and final, without recourse to the Trustee or the Trust (except such recourse imposed by those Fund and without representations and warranties typically given in such transactionsof title and condition, any prorations applied thereto and any customary closing matters)unless liability for breach thereof is limited to recourse against the Trust Fund, and if such sale is consummated in accordance with the terms of this Agreement, none of neither the Special Servicer, the Master Servicer or nor the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the TrusteeServicer. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, unless changes in the REMIC Provisions or authoritative interpretations thereof made or issued subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding The Special Servicer shall not be obligated by any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated 3.18 to accept the highest cash offer bid if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer bid would be in the best interests of the CertificateholdersCertificateholders (as a collective whole). In addition, and the Special Servicer may accept a lower cash offer bid (from any Person person or entity other than itself or an Affiliate) ), if it determines, in accordance with the Servicing Standard, that acceptance of such offer bid would be in the best interests of the Certificateholders (as a collective whole) (for example, if the prospective buyer making the lower offer bid is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer bid are more favorable).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Pass Through Cert Series 1998-C3)

Sale of Mortgage Loans and REO Properties. (a) The parties hereto may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property only on the terms and subject to the conditions set forth in this Section 3.18 or as otherwise expressly provided in or contemplated by Sections 2.03 and 9.01. (b) [If the Special Servicer has determined, in its good faith and reasonable judgment, that any Defaulted Mortgage Loan will become the subject of a foreclosure sale or similar proceeding, and that the sale of such Mortgage Loan under the circumstances provided in this Section 3.18(b) or in Section 3.18(c) is in accordance with the Servicing Standard, the Special Servicer shall promptly so notify in writing the Trustee and the Master Servicer, and the Trustee shall, within 10 days after receipt of such notice, notify all the Certificateholders of the Controlling Class. The Majority Certificateholder of the Controlling Class may at its option purchase from the Trust, at a price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Certificateholder(s) effecting such purchase (or any designee thereof) the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Certificateholder(s) effecting such purchase (or any designee thereof) ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer shall deliver the related Servicing File to the Certificateholder(s) effecting such purchase (or any designee thereof). (c) If the Majority Certificateholder of the Controlling Class has not purchased any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b) within 15 days of its having received notice in respect thereof pursuant to Section 3.18(b)] ) above, either the Special Servicer or, subject to the Special Servicer's prior rights in such regard, the Master Servicer may at its option purchase such Mortgage Loan from the Trust, at a price equal to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased under this paragraph (c) shall be deposited into the Certificate Account, and the Trustee, upon receipt of an Officer's Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the Master Servicer or the Special Servicer, as applicable, the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Master Servicer or the Special Servicer, as applicable, the ownership of such Mortgage Loan. In connection with any such purchase by the Master Servicer, the Special Servicer shall deliver the related Servicing File to the Master Servicer. (d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interests of the Trust. Such offer shall be made in a commercially reasonable manner (which, for purposes hereof, includes an offer to sell without representation or warranty other than customary warranties of title, loan status, condition and similar customary matters, if liability for breach thereof is limited to recourse against the Trust) for a period of not less than 30 days. Unless the Special Servicer determines that acceptance of any offer would not be in the best economic interests of the Trust, the Special Servicer shall accept the highest cash offer received from any Person that constitutes a fair price for such Mortgage Loan. In the absence of any offer determined as provided below to be fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance with the Servicing Standard. The Special Servicer shall use its best efforts to solicit offers for each REO Property in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.16(a). The Special Servicer shall accept the first (and, if multiple offers are received contemporaneously, highest) cash offer received from any Person that constitutes a fair price (determined pursuant to Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably believes that it will be unable to realize a fair price (determined pursuant to Section 3.18(e) below) for any REO Property within the time constraints imposed by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received. The Special Servicer shall give the Trustee and the Master Servicer not less than five Business Days' prior written notice of its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested Person shall be obligated to submit an offer to purchase any such Mortgage Loan or REO Property, and notwithstanding anything to the contrary herein, neither the Trustee nor the Fiscal Agent, each in its respective individual capacity, nor any of its their respective Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto. (e) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of Section 3.18(d), shall be determined by the Special Servicer or, if such cash offer is from an Interested Person, by the Trustee. In determining whether any offer received from an Interested Person represents a fair price for any such Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 12-month period or, in the absence of any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained by the Special Servicer. Such appraiser shall be selected by the Special Servicer if neither the Special Servicer nor any Affiliate thereof is making an offer with respect to a Defaulted Mortgage Loan or REO Property and shall be selected by the Trustee if the Special Servicer or an Affiliate thereof is making such an offer. The cost of any such narrative appraisal shall be advanced by the Master Servicer, at the direction of the Special Servicer, and shall constitute a Servicing Advance. When any Interested Person is among those making an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that all offers be submitted in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offered amount. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, 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 12 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Mortgage Loan or REO Property, any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16(a). Notwithstanding the other provisions of this Section 3.18, no cash offer from any Interested Person or any Affiliate thereof in an amount less than the related Purchase Price shall constitute a fair price for any Defaulted Mortgage Loan or REO Property unless such offer is the highest cash offer received and at least two additional offers (not including the offers of Interested Persons or any Affiliates thereof) have been received from Independent third parties reflecting prices less than the related Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair price. (f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer shall act on behalf of the Trustee in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, 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 evaluating offers without obligation to deposit such amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and without recourse to the Trustee or the Trust (except such recourse imposed by those representations and warranties typically given in such transactions, any prorations applied thereto 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 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. (g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes in the REMIC Provisions made subsequent to the Startup Day allow a sale for other consideration). (h) Notwithstanding any of the foregoing paragraphs of this Section 3.18, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms (other than price) offered by the prospective buyer making the lower offer are more favorable).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Capital Funding Inc)

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