Common use of Sale of the Whole Loan Clause in Contracts

Sale of the Whole Loan. (i) Within sixty (60) days after the occurrence of a Special Servicing Loan Event and notice of the occurrence is received by the Special Servicer, the Special Servicer shall order (but shall not be required to have received) an Appraisal. The Servicer shall promptly notify in writing the Special Servicer, the Trustee, the Certificate Administrator, the Companion Loan Holders and the Directing Certificateholder (prior to the occurrence and continuance of a Consultation Termination Event) of the occurrence of such Special Servicing Loan Event. Upon delivery by the Servicer of the notice described in the preceding sentence, and subject to the rights of the Directing Certificateholder, the Special Servicer may offer to sell to any Person the Whole Loan or may offer to purchase the Whole Loan, if and when the Special Servicer determines, consistent with Accepted Servicing Practices, that no satisfactory arrangements can be made for collection of delinquent payments thereon and such a sale would be in the best economic interests of the Trust and the Companion Loan Holders as a collective whole as if they constituted a single lender (taking into account the subordination of the Trust B Notes to the A Notes) on a net present value basis. The Special Servicer shall provide the Trustee, the Companion Loan Holders, the Certificate Administrator, the Risk Retention Consultation Parties and the Directing Certificateholder (prior to the occurrence of a Consultation Termination Event) not less than five (5) Business Days’ prior written notice of its intention to sell the Whole Loan, in which case the Special Servicer is required to accept the highest offer received from any Person (other than any Interested Person) for the Whole Loan so long as such offer is at least equal to the Loan Purchase Price. At the Special Servicer’s option, if it has received no offer at least equal to the Loan Purchase Price therefor, an Interested Person (other than the Manager or Borrower Affiliate) may purchase the Whole Loan at the Loan Purchase Price. Any Companion Loan is to be sold together with the Mortgage Loan, subject to this Section 3.16 and any additional requirements set forth in the Co-Lender Agreement (including, without limitation, Section 5 of the Co-Lender Agreement). (ii) In the absence of any offer and purchase at least equal to the Loan Purchase Price, the Special Servicer shall accept the highest offer received from any Person that is determined by the Special Servicer to be a fair price for the Whole Loan. In determining whether any offer from a person other than an Interested Person constitutes a fair price for any defaulted Whole Loan, the Special Servicer is required to take into account (in addition to the results of any appraisal, updated appraisal or narrative appraisal that it may have obtained pursuant to this Agreement within the prior nine months), among other factors, the period and amount of the occupancy level and physical condition of the Mortgaged Property and the state of the local economy. However, if the highest offeror is a Person who is the Depositor, the Servicer, the Special Servicer, the Certificate Administrator, the Directing Certificateholder (or any of its Affiliates), the Property Manager, any Borrower Affiliate, an Other Depositor, the master servicer, the special servicer (or any independent contractor engaged by such special servicer) or the trustee for an Other Securitization Trust, a Companion Loan Holder or any known Affiliate of any of them (any such Person, an “Interested Person”), then the Trustee (based upon, among other things, the Appraisals ordered pursuant to the preceding paragraph (the cost of which shall be paid by the Servicer as a Property Protection Advance unless it would constitute a Nonrecoverable Advance) and copied or otherwise delivered to the Trustee and any other information reasonably requested by the Trustee) shall determine if the highest offer is a fair price; provided that no offer from an Interested Person shall constitute a fair price unless (A) it is the highest offer received and (B) if such offer is less than the applicable Loan Purchase Price, at least two other offers are received from independent third parties. Any such determination shall be binding upon all parties. All reasonable costs and fees of the Trustee and any third party hired by the Trustee in accordance with this Agreement in making such determination shall be reimbursable to it first, by the Servicer as an Advance, or if the Servicer determines that such amounts are Nonrecoverable Advances, then as a Trust Fund Expense (except to the extent such expense is reimbursed with funds otherwise paid from amounts allocable to the Companion Loans pursuant to the terms of the Co-Lender Agreement). The Directing Certificateholder may submit bids on the defaulted Mortgage Loan in the same manner and at the same time and place as any other bidder. If the Trustee designates any such third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination. Neither the Trustee, in its individual capacity, nor any of its Affiliates may make an offer for or purchase the Whole Loan. (iii) Notwithstanding anything contained in the preceding paragraph to the contrary, if an Interested Person offers to purchase the Whole Loan and the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the Interested Person or as a Trust Fund Expense (except to the extent such expense is reimbursed with funds otherwise paid from amounts allocable to the Companion Loans pursuant to the terms of the Co-Lender Agreement), as set forth below) designate an Independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuation of or investment in loans similar to the Whole Loan, that has been selected with reasonable care by the Trustee for the sole purpose of determining whether any such cash offer constitutes a fair price for the Whole Loan. If the Trustee designates any such third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination. The reasonable fees of, and the reasonable costs of all Appraisals, property condition assessments and broker opinions of value incurred by the Trustee or any such third party pursuant to this paragraph shall be covered by, and shall be reimbursable by, the Interested Person, and if such fees or costs are not reimbursed by such Interested Person, such expense shall be reimbursable to it first, by the Servicer as an Advance, subject to the Servicer’s determination that such amounts are not Nonrecoverable Advances, and then, if not paid by the Servicer as an Advance, paid as a Trust Fund Expense (except to the extent such expense is reimbursed with funds otherwise paid from amounts allocable to the Companion Loans pursuant to the terms of the Co-Lender Agreement); provided that the Trustee shall not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee. If such amounts are reimbursed from amounts allocable to the Mortgage Loan, the Servicer (with respect to the Whole Loan when it is not a Specially Serviced Whole Loan) or Special Servicer (with respect to a Specially Serviced Whole Loan or Foreclosed Property) will be required, after receiving payment from amounts on deposit in the Collection Account allocable to the Mortgage Loan, if any, to (i) promptly notify the Companion Loan Holders and (ii) use efforts consistent with Accepted Servicing Practices to exercise on behalf of the Trust the rights of the Trust under the Co-Lender Agreement to obtain reimbursement for a pro rata portion (based on the principal balances of the Notes) of such amount allocable to the Companion Loans from the Companion Loan Holders. (iv) The Special Servicer shall not be obligated to accept a higher offer if the Special Servicer determines, in accordance with Accepted Servicing Practices, that the rejection of such offer would be in the best interests of the Certificateholders and the Companion Loan Holders (as a collective whole as if they constituted a single lender, taking into account the subordination of the Trust B Notes to the A Notes). In addition, the Special Servicer may accept a lower offer if it determines, in accordance with Accepted Servicing Practices, that the acceptance of such offer would be in the best interests of the Certificateholders and the Companion Loan Holders as collective whole as if they constituted a single lender (taking into account the subordination of the Trust B Notes to the A Notes) on a net present value basis (for example if the prospective buyer making the lower offer is more likely to perform its obligations or the terms offered by the prospective buyer making the lower offer are more favorable in other respects), provided that the offeror is not the Special Servicer or a Person that is an Affiliate of the Special Servicer. The Special Servicer shall use efforts consistent with Accepted Servicing Practices to sell the Whole Loan prior to the Rated Final Distribution Date. (v) Unless and until the Whole Loan is sold pursuant to this Section 3.16(a), the Special Servicer shall pursue such other resolution strategies with respect to the Whole Loan, including, without limitation, workout and foreclosure, as the Special Servicer may deem appropriate, consistent with the Asset Status Report, Accepted Servicing Practices and the REMIC Provisions. (b) Any sale of the Whole Loan by the Special Servicer shall be subject to the consultation rights of the Risk Retention Consultation Parties as described in Section 9.3 herein and the rights of the Companion Loan Holders. (c) The right of the Special Servicer to purchase or sell the Whole Loan after the occurrence of a Special Servicing Loan Event shall terminate, and shall not be exercisable as set forth in clause (a) above (or if exercised but the purchase of the Whole Loan has not yet occurred, the Special Servicer’s right shall terminate and such exercise shall be of no further force or effect) if the Whole Loan is no longer delinquent as a result of any of the following: (i) the Special Servicing Loan Event has ceased pursuant to the terms of this Agreement, (ii) the Whole Loan has become subject to a fully executed agreement reflecting the terms of the workout arrangement or (iii) the Whole Loan has otherwise been resolved (including by a full or discounted pay-off). (d) Any sale of the Whole Loan shall be for cash only, and shall be in accordance with and subject to the provisions of the Co-Lender Agreement. (e) Notwithstanding anything to the contrary herein, the Special Servicer shall not sell the Whole Loan pursuant to Section 3.16(a) without the written consent of the Companion Loan Holders (provided that such consent is not required from a Companion Loan Holder if such Companion Loan Holder is the Borrower or an Affiliate of the Borrower) unless the Special Servicer has delivered to the Companion Loan Holders: (a) at least 15 Business Days prior written notice of any decision to attempt to sell the Whole Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Whole Loan, and any documents in the Mortgage File reasonably requested by such Companion Loan Holder that are material to the price of the Whole Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Special Servicer in connection with the proposed sale; provided, that such Companion Loan Holder may waive any of the delivery or timing requirements set forth in this sentence. The Companion Loan Holders shall be permitted to make offers to purchase, and either such party is permitted to be the purchaser at any sale of, the Whole Loan.