Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination), the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that: (i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property; (ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or (iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer. (b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon; (iii) any ground rents in respect of such REO Property; and (iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings. (c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property: (i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length; (ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property; (iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt; (iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and (v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property. (e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22. (f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 4 contracts
Sources: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2005-C5), Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2005-C7), Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2005-C5)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "“net income from foreclosure property" ” within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "“REO Tax"”), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property, other than holding such REO Property for sale or lease or performing construction work thereon;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, exercised in accordance with the Servicing Standard, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or otherwise operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and either (i) that the income or earnings with respect to such REO Property will offset any REO Tax relating to such income or earnings and will maximize the net recovery from the applicable REO Property to the Certificateholders or (ii) that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, then the Special Servicer shall deliver to the Tax AdministratorAdministrator and the Subordinate Class Representative, in writing, a proposed plan (the "“Proposed Plan"”) to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, income and good faith estimates of the amount of income from each such source. Upon request Within a reasonable period of the Special Servicertime after receipt of such plan, the Tax Administrator shall consult with the Special Servicer and shall advise the Special Servicer of the Tax Administrator's Trust’s federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Tax Administrator shall (to the maximum extent reasonably possible and at a reasonable fee, which fee shall be an expense of the Trust) advise the Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. Subject to Section 3.17(b), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's ’s decision as to how each Administered REO Property shall be managed and operated shall be based on in accordance with the Servicing Standard andStandard. Neither the applicable Special Servicer nor the Tax Administrator shall be liable to the Certificateholders, furtherthe Trustee, based on the Trust, the other parties hereto, any beneficiaries hereof or each other for errors in judgment made in good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest exercise of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with their discretion while performing their respective duties responsibilities under this Section 3.17(a), both ) with respect to any REO Property. Nothing in this Section 3.17(a) is intended to prevent the Special Servicer sale of any REO Property pursuant to the terms and subject to the Tax Administrator may consult with counsel and tax accountants, the reasonable cost conditions of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special ServicerSection 3.18.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (andCertificateholders, in the case of any Administered REO Property related to as a Serviced Loan Combinationcollective whole, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in accordance with Section 3.18, in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "“foreclosure property" ” within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "“income from non-permitted assets" ” within the meaning of Section 860F(a)(2)(B) of the Code or result Code, in an Adverse REMIC Event with respect to any REMIC Pool. Except as contemplated by Section 3.17(a), the Special Servicer shall not enter into any lease, contract or an Adverse Grantor other agreement with respect to any REO Property that causes the Trust Eventto receive, and (unless required to do so under any lease, contract or agreement to which the Special Servicer or the Trust may become a party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor’s rights or remedies with respect to the related Mortgage Loan) shall not, with respect to any REO Property, cause or allow the Trust to receive, any “net income from foreclosure property” that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith with the administration of any REO Property, as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related its REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related Special Servicer’s REO Account in with respect of to any Administered REO Property are insufficient for the purposes set forth in contemplated by the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, but subject to Section 3.11(h), make a Servicing Advances in Advance of such amounts as are necessary for such purposes unless the Master Servicer or the Special Servicer determines, in accordance with the Servicing Standardits reasonable judgment, that such payment would advances would, if made, be a Nonrecoverable AdvanceServicing Advances; provided, however, that the Master Servicer may in its sole discretion make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) The Special Servicer may, and, if required for the REO Property to continue to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code, shall, contract with any Independent Contractor for the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be inconsistent herewith and shall reflect an agreement reached at arm’s length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust) shall be reasonable and customary in consideration of the nature and locality of such REO Property;
(iii) any such contract shall be consistent with Treasury Regulations Section 1.856-6(e)(6) and shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay all costs and expenses incurred in connection with the operation and management of such REO Property, including those listed in Section 3.17(b) above, and (B) remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property, and the Special Servicer shall comply with the Servicing Standard in maintaining such Independent Contractor. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations hereunder for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. To the extent the costs of any contract with any Independent Contractor for the operation and management of any REO Property are greater than the revenues available from such property, such excess costs shall be covered by, and be reimbursable as, a Servicing Advance.
(d) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) permit the Trust Fund to enter into, renew or extend any New Lease with respect to such Administered any REO Property, if the New Lease, Lease by its terms would will give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered any REO Property, other than the repair or maintenance thereof or the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became become imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) except as otherwise provided for in Sections 3.17(a)(i), 3.17(a)(ii) and 3.17(a)(iii) and above, Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered Operate, any REO Property on any date more than 90 ninety (90) days after its date of acquisition by or on behalf of the related REO AcquisitionTrust Fund; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable Servicer as a Servicing Advance) to the effect that such action would will not cause such Administered REO Property to fail to qualify as "“foreclosure property" ” within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Poolfor the benefit of the Trust Fund, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 4 contracts
Sources: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2011-C5), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C6), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C6)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable feasible means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the maximum extent possible) advise the Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) the net after-tax REO Revenues received by the Trust with respect to such property without materially impairing its marketability and, to the extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers and asset managers operating acquired mortgaged property comparable to such REO Property. Both the Special Servicer's ability Servicer and the REMIC Administrator may consult with counsel knowledgeable in such matters at (to promptly sell such property for a fair price. In the extent reasonable) the expense of the Trust in connection with performing their respective duties determinations required under this Section 3.17(a), both . Neither the Special Servicer and nor the Tax REMIC Administrator may consult with counsel and tax accountantsshall be liable to the Certificateholders, the Trust, the other parties hereto or each other for errors in judgment made in good faith in the reasonable cost exercise of which consultation shall be covered bytheir discretion while performing their respective responsibilities under this Section 3.17(a) or, to the extent it relates to federal income tax consequences for the Trust, Section 3.17(b) below. Nothing in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 3.18.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any either of REMIC Pool I or REMIC II of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event in respect of any such REMIC. Except as provided in Section 3.17(a), the Special Servicer shall not enter into any lease, contract or an Adverse Grantor other agreement that causes REMIC I to receive, and (unless required to do so under any lease, contract or agreement to which the Special Servicer or the Trust Eventmay become a party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to a Mortgage Loan) shall not cause or allow REMIC I to receive any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; ;] and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) through [(iv)] above with respect to such REO Property, the Special Servicer shall direct the Master Servicer shall, at to make (and the direction of the Special Servicer, make Master Servicer shall so make) Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced in the manner contemplated by Section 3.11(g)) the Special Servicer or the Master Servicer determines, in accordance with the Servicing Standardits reasonable, good faith judgment, that such payment would be a Nonrecoverable Servicing Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may (and, except as otherwise permitted by Section 3.17(a), shall if it would avoid an Adverse REMIC Event) contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor [(which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(sTrust)) ] shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall requirebe consistent with the provisions of Treasury Regulation ss.1.856-4(b)(5) and, or to the extent consistent therewith, shall be administered to require, require that the Independent Contractor, in a timely manner, (A) to the extent of available revenue from the REO Property, pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of [its fees and and] such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and;
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.; and
(evi) the appointment of such Independent Contractor will not result in a qualification, downgrading or withdrawal of any of the ratings then assigned to the Certificates by such Rating Agency (as evidenced in writing or otherwise by such Rating Agency). The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 4 contracts
Sources: Pooling and Servicing Agreement (Nationslink Funding Corp), Pooling and Servicing Agreement (Nationslink Funding Corp), Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "“net income from foreclosure property" ” within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "“REO Tax"”), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property, other than holding such REO Property for sale or lease or performing construction work thereon;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, exercised in accordance with the Servicing Standard, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or otherwise operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and either (i) that the income or earnings with respect to such REO Property will offset any REO Tax relating to such income or earnings and will maximize the net recovery from the applicable REO Property to the Certificateholders (taking into account that any related Companion Loan Holder(s) do not have any obligation under the related Intercreditor Agreement to bear the effect of any such REO Tax) or (ii) that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, then the Special Servicer shall deliver to the Tax AdministratorAdministrator and the Subordinate Class Representative, in writing, a proposed plan (the "“Proposed Plan"”) to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, income and good faith estimates of the amount of income from each such source. Upon request Within a reasonable period of the Special Servicertime after receipt of such plan, the Tax Administrator shall consult with the Special Servicer and shall advise the Special Servicer of the Tax Administrator's Trust’s federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Tax Administrator shall (to the maximum extent reasonably possible and at a reasonable fee, which fee shall be an expense of the Trust) advise the Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. Subject to Section 3.17(b), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's ’s decision as to how each Administered REO Property shall be managed and operated shall be based on in accordance with the Servicing Standard andStandard. Neither the applicable Special Servicer nor the Tax Administrator shall be liable to the Certificateholders, furtherthe Trustee, based on the Trust, the other parties hereto, any beneficiaries hereof or each other for errors in judgment made in good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest exercise of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with their discretion while performing their respective duties responsibilities under this Section 3.17(a), both ) with respect to any REO Property. Nothing in this Section 3.17(a) is intended to prevent the Special Servicer sale of any REO Property pursuant to the terms and subject to the Tax Administrator may consult with counsel and tax accountants, the reasonable cost conditions of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special ServicerSection 3.18.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (andor, in the case of any Administered REO Property related to a Serviced Loan Combination, on behalf of both the Certificateholders and the related Serviced Non-Trust Mortgage Companion Loan Noteholder(sHolder(s)) ), as a collective whole, solely for the purpose of its prompt disposition and sale in accordance with Section 3.18, in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "“foreclosure property" ” within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "“income from non-permitted assets" ” within the meaning of Section 860F(a)(2)(B) of the Code or result Code, in an Adverse REMIC Event with respect to any REMIC Pool or in an Adverse Grantor Trust EventEvent with respect to the Grantor Trust Pool. Except as contemplated by Section 3.17(a), the Special Servicer shall not enter into any lease, contract or other agreement with respect to any REO Property that causes the Trust to receive, and (unless required to do so under any lease, contract or agreement to which the Special Servicer or the Trust may become a party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor’s rights or remedies with respect to the related Mortgage Loan) shall not, with respect to any REO Property, cause or allow the Trust to receive, any “net income from foreclosure property” that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith with the administration of any REO Property, as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related its REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related Special Servicer’s REO Account in with respect of to any Administered REO Property are insufficient for the purposes set forth in contemplated by the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, but subject to Section 3.11(h), make a Servicing Advances in Advance of such amounts as are necessary for such purposes unless the Master Servicer or the Special Servicer determines, in accordance with the Servicing Standardits reasonable judgment, that such payment would advances would, if made, be a Nonrecoverable AdvanceServicing Advances; provided, however, that the Master Servicer may in its sole discretion make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) The Special Servicer may, and, if required for the REO Property to continue to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code, shall, contract with any Independent Contractor for the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be inconsistent herewith and shall reflect an agreement reached at arm’s length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust) shall be reasonable and customary in consideration of the nature and locality of such REO Property;
(iii) any such contract shall be consistent with Treasury Regulations Section 1.856-6(e)(6) and shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay all costs and expenses incurred in connection with the operation and management of such REO Property, including those listed in Section 3.17(b) above, and (B) remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property, and the Special Servicer shall comply with the Servicing Standard in maintaining such Independent Contractor. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations hereunder for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. To the extent the costs of any contract with any Independent Contractor for the operation and management of any REO Property are greater than the revenues available from such property, such excess costs shall be covered by, and be reimbursable as, a Servicing Advance.
(d) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) permit the Trust Fund to enter into, renew or extend any New Lease with respect to such Administered any REO Property, if the New Lease, Lease by its terms would will give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered any REO Property, other than the repair or maintenance thereof or the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became become imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) except as otherwise provided for in Sections 3.17(a)(i), 3.17(a)(ii) and 3.17(a)(iii) and above, Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered Operate, any REO Property on any date more than 90 ninety (90) days after its date of acquisition by or on behalf of the related REO AcquisitionTrust Fund; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable Servicer as a Servicing Advance) to the effect that such action would will not cause such Administered REO Property to fail to qualify as "“foreclosure property" ” within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Poolfor the benefit of the Trust Fund, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 3 contracts
Sources: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C8), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C7), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C7)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special ServicerServicer (exercised in accordance with the Servicing Standard), it such alternative is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax REMIC Administrator's tax reporting positionexpenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this Section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(e). The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered Loan Combination REO Property related to a Serviced Loan CombinationProperty, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, ) by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective Mortgaged Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax REMIC Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a)(xiii) consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered Loan Combination REO Property related to a Serviced Loan CombinationProperty, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate manage and restore such REO Property. To the extent that amounts on deposit in the related applicable REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the applicable Master Servicer shall, at the direction of the Special Servicer, subject to Section 3.03(c), shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officer's Certificate delivered to the Trustee) such Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the such Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the applicable Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC PoolI, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Unless Section 3.17(a)(i) applies, the Special Servicer may shall contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 3 contracts
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2006-C1), Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2006-3), Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2006-2)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special ServicerServicer (exercised in accordance with the Servicing Standard), it such alternative is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax REMIC Administrator's tax reporting positionexpenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this Section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(e). The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered Loan Combination REO Property related to a Serviced Loan CombinationProperty, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, ) by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective Mortgaged Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax REMIC Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a)(xiii) consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered Loan Combination REO Property related to a Serviced Loan CombinationProperty, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate manage and restore such REO Property. To the extent that amounts on deposit in the related applicable REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, subject to Section 3.03(c), shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officer's Certificate delivered to the Trustee) the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC PoolI, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Unless Section 3.17(a)(i) applies, the Special Servicer may shall contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (MLCFC Commercial Mortgage Trust Series 2006-1), Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-Cki1)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable feasible means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the maximum extent possible) advise the Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) the net after-tax REO Revenues received by the Trust with respect to such property without materially impairing its marketability and, to the extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers and asset managers operating acquired mortgaged property comparable to such REO Property. Both the Special Servicer's ability Servicer and the REMIC Administrator may consult with counsel knowledgeable in such matters at (to promptly sell such property for a fair price. In the extent reasonable) the expense of the Trust in connection with performing their respective duties determinations required under this Section 3.17(a), both . Neither the Special Servicer and nor the Tax REMIC Administrator may consult with counsel and tax accountantsshall be liable to the Certificateholders, the Trust, the other parties hereto or each other for errors in judgment made in good faith in the reasonable cost exercise of which consultation shall be covered bytheir discretion while performing their respective responsibilities under this Section 3.17(a) or, to the extent it relates to federal income tax consequences for the Trust, Section 3.17(b) below. Nothing in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 3.18.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either -104- result in the receipt by any either of REMIC Pool I or REMIC II of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event in respect of any such REMIC. Except as provided in Section 3.17(a), the Special Servicer shall not enter into any lease, contract or an Adverse Grantor other agreement that causes REMIC I to receive, and (unless required to do so under any lease, contract or agreement to which the Special Servicer or the Trust Eventmay become a party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to a Mortgage Loan) shall not cause or allow REMIC I to receive any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; ;] and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) through [(iv)] above with respect to such REO Property, the Special Servicer shall direct the Master Servicer shall, at to make (and the direction of the Special Servicer, make Master Servicer shall so make) Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced in the manner contemplated by Section 3.11(g)) the Special Servicer or the Master Servicer determines, in accordance with the Servicing Standardits reasonable, good faith judgment, that such payment would be a Nonrecoverable Servicing Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may (and, except as otherwise permitted by Section 3.17(a), shall if it would avoid an Adverse REMIC Event) contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor [(which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(sTrust)) ] shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
; [(iii) except as permitted under Section 3.17(a), any iii)any such contract shall requirebe consistent with the provisions of Treasury Regulation ss.1.856-4(b)(5) and, or to the extent consistent therewith, shall be administered to require, require that the Independent Contractor, in a timely manner, (A) to the extent of available revenue from the REO Property, pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of [its fees and and] such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc), Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a Serviced Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Serviced Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Serviced Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Serviced Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Serviced Mortgaged Property as an Administered REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special ServicerServicer (exercised in accordance with the Servicing Standard), it such alternative is commercially reasonable) acquire such Serviced Mortgaged Property as Administered REO Property and so lease or operate such Administered REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as Administered REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as Administered REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as Administered REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Serviced Mortgaged Property as Administered REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders ) or (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)B) the net after-tax REO Revenues received with respect to manage such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does would not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
an REO Tax on the income derived from such property. All of the REMIC Administrator's expenses (iii) including any ground rents in respect of such REO Property; and
(iv) all costs fees and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building counsel or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(Bexperts reasonably retained by it) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of reimbursed to it from the Trust Fund in accordance with Section 3.2210.01(e).
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2006-4), Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2007-6)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan CombinationTrust Mortgage Loan), the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review thatin compliance with the Servicing Standard that in its good faith and reasonable judgment:
(i) None of the income from Directly Operating such Mortgaged Administered REO Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), and the Special Servicer does not engage in any of the activities described in the definition of "Directly Operate" that would cause such Administered REO Property to cease to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code, then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it such alternative is commercially reasonablefeasible and would result in a greater net recovery on a present value basis than earning income subject to an REO Tax) acquire such Mortgaged Property as REO Property and so lease or operate manage such Administered REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no such method of operation is commercially reasonable means exists to operate feasible and would result in a greater net recovery on a present value basis than leasing or other method of operating such property as Administered REO Property without the Trust Fund incurring or possibly incurring that would not incur an REO Tax on income from such propertyTax, the Special Servicer shall deliver to the Tax Certificate Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the Certificate Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax Certificate Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Certificate Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax Certificate Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax Certificate Administrator's tax reporting positionexpenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(e). The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based and in any case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered SLC REO Property related to a Serviced Loan CombinationProperty, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), ) (as a collective whole, ) by maximizing (to the extent commercially reasonable feasible and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective REO Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax Certificate Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a) and, to the extent such amounts relate to a Serviced Loan Combination and/or an SLC REO Property, at the expense of the Trust Fund and the related Serviced Non-Trust Mortgage Loan Noteholder(s) payable pursuant to Section 3.05(e), consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, conserve and protect and operate such Administered REO Property for the benefit of the Certificateholders (and, in the case of any Administered SLC REO Property related to a Serviced Loan CombinationProperty, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) (as a collective whole) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either and will not result in either (i) the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in (ii) an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such Administered REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such Administered REO Property;
(ii) all real estate taxes and assessments in respect of such Administered REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such Administered REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate manage and restore such Administered REO Property. To the extent that amounts on deposit in the related applicable REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such Administered REO Property, the applicable Master Servicer shall, at the direction of the Special Servicer, subject to the second paragraph of Section 3.03(c), shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officer's Certificate delivered to the Trustee) the applicable Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the applicable Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoingUnless Section 3.17(a)(i) applies, the Special Servicer shall not, contract with respect to any Administered REO Property:
Independent Contractor (i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid required by the Master Servicer, at REMIC Provisions for the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such subject Administered REO Property to fail to qualify remain classified as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(aCode) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(fd) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (CD 2007-Cd4 Commercial Mortgage Trust), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2007-C6)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination), the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.Section
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C1), Pooling and Servicing Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C1)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the maximum extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income from such REO Property. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) the net after-tax REO Revenues received by the Trust with respect to such property without materially impairing its marketability and, to the extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers and asset managers operating acquired mortgaged property comparable to such REO Property. Both the Special Servicer's ability Servicer and the REMIC Administrator may consult with counsel knowledgeable in such matters at (to promptly sell such property for a fair price. In the extent reasonable) the expense of the Trust in connection with performing their respective duties determinations required under this Section 3.17(a), both . Neither the Special Servicer and nor the Tax REMIC Administrator may consult with counsel and tax accountantsshall be liable to the Certificateholders, the Trust, the other parties hereto or each other for errors in judgment made in good faith in the reasonable cost exercise of which consultation shall be covered bytheir discretion or in reasonable and good faith reliance on the advice of knowledgeable counsel while performing their respective responsibilities under this Section 3.17(a) or, to the extent it relates to federal income tax consequences for the Trust, Section 3.17(b) below. Nothing in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 3.18.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any of REMIC Pool I, REMIC II or REMIC III of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event in respect of any such REMIC. Except as provided in Section 3.17(a), the Special Servicer shall not enter into any lease, contract or an Adverse Grantor other agreement that causes REMIC I to receive, and (unless required to do so under any lease, contract or agreement to which the Special Servicer or the Trust Eventmay become a party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to a Mortgage Loan) shall not cause or allow REMIC I to receive any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Special Servicer shall direct the Master Servicer shall, at to make (and the direction of the Special Servicer, make Master Servicer shall so make) Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced in the manner contemplated by Section 3.11(g)) the Special Servicer or the Master Servicer determines, in accordance with the Servicing Standardits reasonable, good faith judgment, that such payment would be a Nonrecoverable Servicing Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may (and, except as otherwise permitted by Section 3.17(a), shall if it would avoid an Adverse REMIC Event) contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Trust) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall requirebe consistent with the provisions of Treasury Regulation ss.1.856-4(b)(5) and, or to the extent consistent therewith, shall be administered to require, require that the Independent Contractor, in a timely manner, (A) to the extent of available revenue from the REO Property, pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Mortgage Capital Funding Inc), Pooling and Servicing Agreement (Mortgage Capital Funding Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer (other than the holding of such Mortgaged Property for sale to customers in the ordinary course of trade or business or the performance of any construction work thereon) as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property Mortgaged Property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting positionposition or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on income derived from such property. The Special Servicer's decision as to how each Administered REO Property Property, shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, or in the case of any Administered a Loan Pair REO Property related to a Serviced Property, in the best interest of the Certificateholders and the applicable Companion Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), Noteholders (as a collective whole, )) by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b3.18(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a3.18(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property Property, is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, or in the case of any Administered a Loan Pair REO Property related to Property, in the best interest of the Certificateholders and the applicable Companion Loan Noteholders (as a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(scollective whole)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a3.18(a), either result in the receipt by any either REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related applicable REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related applicable REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Special Servicer shall, at the direction of the Special Servicer, shall make Servicing Advances in such amounts as are necessary for such purposes unless the Master Special Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Special Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings. The Special Servicer shall notify the Master Servicer if it shall have made any such Servicing Advance within the previous 30-day period.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such any Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such any Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered any Mortgaged Property as REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable Servicer as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Poolthe Lower-Tier REMIC, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may may, and if so required to prevent the Administered REO Property from failing to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code, shall contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of or with respect to any Administered Loan Pair REO Property that relates such fees shall be netted out of collections on such Loan Pair REO Property prior to a Serviced Loan Combination, their being remitted to the related Serviced Non-Trust Mortgage Loan Noteholder(s)Special Servicer) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a3.18(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b3.18(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Treasury Regulations Section 1.856-4(b)(5) of the Treasury regulations or any successor provision)), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.18(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 3.17 and this Section 3.17 3.18 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d3.18(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.223.23.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 2 contracts
Sources: 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)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special ServicerServicer (exercised in accordance with the Servicing Standard), it such alternative is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax REMIC Administrator's tax reporting positionexpenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(e). The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered Loan Combination REO Property related to a Serviced Loan CombinationProperty, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, ) by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective Mortgaged Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax REMIC Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a)(xiii) consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered Loan Combination REO Property related to a Serviced Loan CombinationProperty, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate manage and restore such REO Property. To the extent that amounts on deposit in the related applicable REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, subject to Section 3.03(c), shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officer's Certificate delivered to the Trustee) the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC PoolI, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Unless Section 3.17(a)(i) applies, the Special Servicer may shall contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-Cki1), Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-McP1)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination), the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) -231- of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(fe) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (LB Commercial Mortgage Trust 2007-C3), Pooling and Servicing Agreement (LB Commercial Mortgage Trust 2007-C3)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination), the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserveconsent, protect protect, operate and operate lease such REO Property for the benefit of the Certificateholders and the Companion Holders, as applicable, and the Trustee (and, in as holder of the case of any Administered REO Property related to a Serviced Loan Combination, REMIC Regular Interests and the related Serviced NonUncertificated Lower-Trust Mortgage Loan Noteholder(s)Tier Interests) solely for the purpose of its prompt timely disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool the Trust Fund of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent in the best interests of and for the benefit of the Certificateholders (and, in the case of each Loan Pair, the related Companion Holder) and the Trustee (as holder of the Loan REMIC Regular Interests and the Uncertificated Lower-Tier Interests) (as determined by the Special Servicer in its reasonable judgment in accordance with the Servicing Standard andStandards). Subject to this Section 3.17, consistent the Special Servicer may allow the Trust Fund to earn "net income from foreclosure property" within the meaning of Section 860G(d) of the Code if it determines that earning such income is in the best interests of Certificateholders on a net after-tax basis as compared with net leasing such REO Property or operating such REO Property on a different basis. In connection therewith, the Special Servicer shall deposit or cause to be deposited on a daily basis (and in no event later than 1 Business Day following receipt of such funds) in the applicable REO Account all revenues received by it with respect to each REO Property and the related REO Loan, and shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, leasing and maintenance and disposition of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if applicable; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate maintain and restore lease such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) - (iv) above with respect to such REO Property, the Master Servicer shall, at the direction of (subject to receiving notice from the Special Servicer, make Servicing Advances Servicer in accordance with the procedures set forth elsewhere in this Agreement) or Special Servicer shall advance from its own funds such amounts amount as are is necessary for such purposes unless (as evidenced by an Officer's Certificate delivered to the Master Servicer determinesTrustee, in accordance with the Depositor, the Paying Agent and the Directing Certificateholder) such advances would, if made, constitute Nonrecoverable Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedingsAdvances.
(cb) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) permit the Trust Fund to enter into, renew or extend any New Lease with respect to such Administered any REO Property, if the New Lease, Lease by its terms would will give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered any REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered Operate, any REO Property on any date more than 90 days after the related REO Acquisitionits acquisition date; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Servicer or Special Servicer, and shall be reimbursable Servicer as a Servicing Advance) to the effect that such action would will not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Poolthe Trust Fund, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(dc) The Special Servicer may shall contract with any Independent Contractor for the operation and management of any Administered REO Property; Property within 90 days of the acquisition date thereof, provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses an expense of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration light of the nature and locality of such Administered REO the Mortgaged Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, Contractor (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(bsubsection (a) abovehereof, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties manage and obligations supervise such Independent Contractor in connection accordance with the operation and management of such Administered REO Property.
(e) Servicing Standards. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(fd) Notwithstanding anything When and as necessary, the Special Servicer shall send to the contraryTrustee, this Section 3.17 shall the Paying Agent and the Servicer a statement prepared by the Special Servicer setting forth the amount of net income or net loss, as determined for federal income tax purposes, resulting from the operation and management of a trade or business on, the furnishing or rendering of a non-customary service to the tenants of, or the receipt of any other amount not apply to constituting Rents from Real Property in respect of, any Outside Administered REO PropertyProperty in accordance with Sections 3.17(a) and 3.17(b).
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Jp Morgan Chase Com Mort Sec Corp Ps THR Certs Ser 2003-Ln1), Pooling and Servicing Agreement (Jp Morgan Chase Com Mort Sec Corp Ps THR Certs Ser 2003-Ln1)
Management of REO Property. (a) Prior to the acquisition by it of title to a Serviced Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Serviced Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Serviced Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Serviced Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Serviced Mortgaged Property as an Administered REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special ServicerServicer (exercised in accordance with the Servicing Standard), it such alternative is commercially reasonable) acquire such Serviced Mortgaged Property as Administered REO Property and so lease or operate such Administered REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as Administered REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as Administered REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Certificate Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as Administered REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the Certificate Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax Certificate Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Certificate Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax Certificate Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Serviced Mortgaged Property as Administered REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders ) or (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)B) the net after-tax REO Revenues received with respect to manage such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does would not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
an REO Tax on the income derived from such property. All of the Certificate Administrator's expenses (iii) including any ground rents in respect of such REO Property; and
(iv) all costs fees and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building counsel or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(Bexperts reasonably retained by it) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of reimbursed to it from the Trust Fund in accordance with Section 3.2210.01(e).
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2007-9), Pooling and Servicing Agreement (MLMT 2008-C1)
Management of REO Property. (a) Prior In the event the Issuer acquires ownership of any REO Property in respect of any Mortgage Loan, the deed or certificate of sale shall be issued to the acquisition by it Indenture Trustee, or to its nominee, on behalf of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination), the Special Securityholders. The Servicer shall review use its reasonable best efforts to sell, any REO Property as expeditiously as possible and in accordance with the operation provisions of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax this Agreement, as "net income from foreclosure property" applicable, but in all events within the meaning of the REMIC Provisions or would be time period, and subject to the tax imposed conditions set forth in Section 5.09 and prior to the close of the third taxable year after its acquisition by the Issuer unless the Indenture Trustee and (so long as any Class A Notes are Outstanding or any Reimbursement Amounts remain due and owing to the Insurer and no Insurer Default has occurred and is continuing) the Insurer shall have been supplied with an Opinion of Counsel to the effect that the holding by the Issuer of such REO Property subsequent to such three-year period will not result in the imposition of taxes on "“prohibited transactions" ” of any REMIC created under Section the Trust Agreement as defined in section 860F of the Code or cause any REMIC created hereunder to fail to qualify as a REMIC at any time that any Notes or Certificates are Outstanding, in which case the Issuer may continue to hold such REO Property (either subject to any conditions contained in such tax referred Opinion of Counsel and the other requirements of this Section 3.07(a)). Pursuant to herein as an "REO Tax"), then its efforts to sell such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating , the Servicer shall protect and conserve, such Mortgaged Property as REO Property could result in income from the manner and to such property that would extent required by this Agreement, subject to Section 5.09 hereof. The decision of the Servicer to foreclose, or to continue the foreclosure process, on a defaulted Mortgage Loan shall be subject to an REO Tax, but a determination by the Servicer that a lease the related Mortgaged Property will not fail to qualify as “foreclosure property” within meaning of Section 860G(a)(8) of the Code and that the proceeds of such property foreclosure would more likely than not exceed the costs and expenses of bringing such a proceeding and liquidating the REO Property expected to another party be obtained through such foreclosure. Notwithstanding any other provision of this Agreement, no Mortgaged Property acquired by the Issuer shall be rented (or allowed to operate such property, continue to be rented) or otherwise used for the performance production of some services income by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment on behalf of the Special Servicer, it is commercially reasonable) acquire Issuer in such Mortgaged Property as REO Property and so lease a manner or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title pursuant to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner terms that does not and will not: would (i) cause such REO Mortgaged Property to fail to qualify as "“foreclosure property" ” within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by subject any REMIC created under the Trust Agreement to the imposition of any federal, state or local income taxes on the income earned from such Mortgaged Property, unless the Servicer has agreed to indemnify and hold harmless the Issuer and the Trust Estate with respect to the imposition of any such taxes.. The Servicer shall cause to be deposited, within the time period specified in Section 3.17(a3.02(b), either result as applicable, in the receipt by any REMIC Pool Collection Account, all revenues net of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject Servicing Advances received with respect to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO AccountProperty and shall retain, or cause to the extent of amounts on deposit therein with respect to any Administered REO Propertybe withdrawn therefrom, funds necessary for the proper operation, management, management and maintenance of the REO Property and the fees of any managing agent acting on behalf of the Servicer. The disposition of REO Property shall be carried out by the Servicer for cash at such REO Propertyprice, including:
(i) all insurance premiums due and payable upon such terms and conditions, as the Servicer deems to be in respect the best interest of the Noteholders, the Certificateholders, the Trust and the Insurer and, as soon as practicable thereafter, the expenses of such REO Property;
(ii) all real estate taxes and assessments in respect sale shall be paid. The cash proceeds of such the sale of the REO Property that may result shall be promptly deposited in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary Collection Account, pursuant to maintainSection 3.02(b), leaseas applicable, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect net of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make related unreimbursed Servicing Advances in such (without duplication of amounts as are necessary for such purposes unless paid pursuant to Section 3.03(vi)), payable to the Master Servicer determines, in accordance with the Servicing StandardSection 3.03, that such for payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection accordance with the defense or prosecution of legal proceedingsSection 5.01 herein.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 2 contracts
Sources: Sale and Servicing Agreement (Indymac MBS Inc), Sale and Servicing Agreement (IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2006-H2)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special ServicerServicer (exercised in accordance with the Servicing Standard), it such alternative is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax REMIC Administrator's tax reporting positionexpenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(e). The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related with respect to a Serviced the Great Mall Loan CombinationPair, the related Serviced NonGreat Mall B-Trust Mortgage Loan Noteholder(s)), as a collective whole, Noteholder) by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective Mortgaged Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax REMIC Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a)(xiii) consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related with respect to a Serviced the Great Mall Loan CombinationPair, the related Serviced NonGreat Mall B-Trust Mortgage Loan Noteholder(s)Noteholder) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate manage and restore such REO Property. To the extent that amounts on deposit in the related applicable REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, subject to Section 3.03(c), shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officer's Certificate delivered to the Trustee) the Master Servicer would not make such advances if the Master Servicer owned such REO Property or the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC PoolI, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Unless Section 3.17(a)(i) applies, the Special Servicer may shall contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered Great Mall REO Property that relates to a Serviced Loan CombinationProperty, the related Serviced NonGreat Mall B-Trust Mortgage Loan Noteholder(s)Noteholder) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc Trust 2004-Mkb1), Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc Trust 2004-Mkb1)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "“net income from foreclosure property" ” within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "“REO Tax"”), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property, other than holding such REO Property for sale or lease or performing construction work thereon;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, exercised in accordance with the Servicing Standard, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or otherwise operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and either (i) that the income or earnings with respect to such REO Property will offset any REO Tax relating to such income or earnings and will maximize the net recovery from the applicable REO Property to the Certificateholders or (ii) that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, then the Special Servicer shall deliver to the Tax AdministratorAdministrator and the Subordinate Class Representative, in writing, a proposed plan (the "“Proposed Plan"”) to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, income and good faith estimates of the amount of income from each such source. Upon request Within a reasonable period of the Special Servicertime after receipt of such plan, the Tax Administrator shall consult with the Special Servicer and shall advise the Special Servicer of the Tax Administrator's Trust’s federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Tax Administrator shall (to the maximum extent reasonably possible and at a reasonable fee, which fee shall be an expense of the Trust) advise the Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. Subject to Section 3.17(b), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's ’s decision as to how each Administered REO Property shall be managed and operated shall be based on in accordance with the Servicing Standard andStandard. Neither the applicable Special Servicer nor the Tax Administrator shall be liable to the Certificateholders, furtherthe Trustee, based on the Trust, the other parties hereto, any beneficiaries hereof or each other for errors in judgment made in good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest exercise of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with their discretion while performing their respective duties responsibilities under this Section 3.17(a), both ) with respect to any REO Property. Nothing in this Section 3.17(a) is intended to prevent the Special Servicer sale of any REO Property pursuant to the terms and subject to the Tax Administrator may consult with counsel and tax accountants, the reasonable cost conditions of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special ServicerSection 3.18.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (andCertificateholders, in the case of any Administered REO Property related to as a Serviced Loan Combinationcollective whole, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in accordance with Section 3.18, in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "“foreclosure property" ” within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "“income from non-permitted assets" ” within the meaning of Section 860F(a)(2)(B) of the Code or result Code, in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust EventEvent with respect to the Grantor Trust Pool. Except as contemplated by Section 3.17(a), the Special Servicer shall not enter into any lease, contract or other agreement with respect to any REO Property that causes the Trust to receive, and (unless required to do so under any lease, contract or agreement to which the Special Servicer or the Trust may become a party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor’s rights or remedies with respect to the related Mortgage Loan) shall not, with respect to any REO Property, cause or allow the Trust to receive, any “net income from foreclosure property” that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith with the administration of any REO Property, as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related its REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related Special Servicer’s REO Account in with respect of to any Administered REO Property are insufficient for the purposes set forth in contemplated by the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, but subject to Section 3.11(h), make a Servicing Advances in Advance of such amounts as are necessary for such purposes unless the Master Servicer or the Special Servicer determines, in accordance with the Servicing Standardits reasonable judgment, that such payment would advances would, if made, be a Nonrecoverable AdvanceServicing Advances; provided, however, that the Master Servicer may in its sole discretion make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C9), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C9)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a than, in each case, the Mortgaged Property that secures an Outside relating to the 2007-C30 Serviced Mortgage Loans, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 2007-IQ14 Serviced Mortgage Loan Combinationand the GECMC 2007-C1 Serviced Mortgage Loan), the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review thatin compliance with the Servicing Standard that in its good faith and reasonable judgment:
(i) None of the income from Directly Operating such Mortgaged REO Property would be subject to tax as "“net income from foreclosure property" ” within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "“REO Tax"”), and the Special Servicer does not engage in any of the activities described in the definition of “Directly Operate” that would cause the REO Property to cease to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code, then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it such alternative is commercially reasonablefeasible and would result in a greater net recovery on a present value basis than earning income subject to an REO Tax) acquire such Mortgaged Property as REO Property and so lease or operate manage such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no such method of operation is commercially reasonable means exists to operate such property as feasible and would result in a greater net recovery on a present value basis than leasing or other method of operating the REO Property without the Trust Fund incurring or possibly incurring that would not incur an REO Tax on income from such propertyTax, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "“Proposed Plan"”) to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's ’s federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax REMIC Administrator's tax reporting position’s expenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this Section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(e). The Special Servicer's ’s decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based and in any case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (andor, in if the case of any Administered REO Property related to was formerly a Serviced Loan CombinationMortgaged Property securing a Co-Lender Loan, the Certificateholders and the related Serviced Non-Trust Mortgage Loan Noteholder(s)), Companion Holder (as a collective wholewhole in accordance with the Servicing Standard, taking into account the subordinate nature of the Companion Loan, if applicable)) by maximizing (to the extent commercially reasonable feasible and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective Mortgaged Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax REMIC Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a)(xv), consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If title to any Administered REO Property (other than, in each case, the REO Property relating to the 2007-C30 Serviced Mortgage Loans, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 2007-IQ14 Serviced Mortgage Loan and the GECMC 2007-C1 Serviced Mortgage Loan) is acquired, the Special Servicer shall manage, conserve, conserve and protect and operate such REO Property for the benefit of the Certificateholders (andor, in if the case of any Administered REO Property related to was formerly a Serviced Loan CombinationMortgaged Property securing a Co-Lender Loan, the Certificateholders and the related Serviced Non-Trust Mortgage Loan Noteholder(sCompanion Holder (as a collective whole in accordance with the Servicing Standard, taking into account the subordinate nature of the Companion Loan, if applicable)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) not cause such REO Property to fail to qualify as "“foreclosure property" ” within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool I of any "“income from non-permitted assets" ” within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate manage and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, subject to the second paragraph of Section 3.03(c), shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officer’s Certificate delivered to the Trustee) the Master Servicer would not make such advances if the Master Servicer owned such REO Property or the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Unless Section 3.17(a)(i) applies, the Special Servicer shall contract with any Independent Contractor (if required by the REMIC Provisions for the REO Property to remain classified as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code) for the operation and management of any REO Property; provided that:
(i) the terms and conditions of any such contract may not be inconsistent herewith and shall reflect an agreement reached at arm’s length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund) shall be reasonable and customary in consideration of the nature and locality of the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, pay all costs and expenses incurred in connection with the operation and management of such REO Property, including, without limitation, those listed in Section 3.17(b) above, and remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations hereunder for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(d) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) permit the Trust Fund to enter into, renew or extend any New Lease with respect to such Administered any REO PropertyProperty (other than, in each case, the REO Property relating to the 2007-C30 Serviced Mortgage Loans, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 2007-IQ14 Serviced Mortgage Loan and the GECMC 2007-C1 Serviced Mortgage Loan), if the New Lease, Lease by its terms would will give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered any REO PropertyProperty (other than, in each case, the REO Property relating to the 2007-C30 Serviced Mortgage Loans, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 2007-IQ14 Serviced Mortgage Loan and the GECMC 2007-C1 Serviced Mortgage Loan), other than the repair or maintenance thereof or the completion of a building or other improvement thereon, and then but only if more than 10% of to the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of extent provided Section 856(e)(4)(B) of the Code; or
(iv) except as otherwise provided for in Section 3.17(a)(i) and (a)(ii) above, Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered Operate, any REO Property (other than, in each case, the REO Property relating to the 2007-C30 Serviced Mortgage Loans, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 2007-IQ14 Serviced Mortgage Loan and the GECMC 2007-C1 Serviced Mortgage Loan) on any date more than 90 days after the related REO Acquisitionits Acquisition Date; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable Servicer as a Servicing AdvanceAdvance unless nonrecoverable, in which case it shall be paid by the Master Servicer as an Additional Trust Fund Expense from amounts on deposit in the Certificate Account) to the effect that such action would will not cause such Administered REO Property to fail to qualify as "“foreclosure property" ” within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Poolthe Trust Fund, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation . Except as limited above in this Section 3.17 and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) ), the Special Servicer shall be obligated with respect thereto permitted to cause the Trust Fund to earn “net income from foreclosure property”, subject to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO PropertyServicing Standard.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C31), Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C31)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a the Meriden Mall Mortgaged Property that secures an Outside Serviced Loan Combinationor the Grace Building Mortgaged Property), the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC PoolI, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(fe) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered Meriden Mall REO Property or any Grace Building REO Property.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2004-C8), Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2004-C8)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the reasonable good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or otherwise operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable feasible means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the maximum extent possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based in either case on the Servicing Standard and, further, based on the reasonable good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, to the extent consistent with the foregoing, in the case of any Administered same manner as would prudent mortgage loan servicers and asset managers operating acquired mortgaged property comparable to the respective REO Property related to a Serviced Loan Combination, under the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing same circumstances. Both the Special Servicer's ability to promptly sell such property for a fair price. In Servicer and the REMIC Administrator may consult with counsel or financial advisers at the expense of the Trust Fund in connection with performing their respective duties determinations required under this Section 3.17(a), both . Neither the Special Servicer and nor the Tax REMIC Administrator may consult with counsel and tax accountantsshall be liable to the Certificateholders, the reasonable cost Trust Fund, the other parties hereto or each other for errors in judgment made in good faith in the exercise of which consultation shall be covered by, their discretion while performing their respective responsibilities under this Section 3.17(a). Nothing in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 3.18.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool I, REMIC II or REMIC III of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event in respect of any such REMIC. Except as provided in Section 3.17(a), the Special Servicer shall not enter into any lease, contract or an Adverse Grantor other agreement that causes REMIC I to receive, and (unless required to do so under any lease, contract or agreement to which the Special Servicer or the Trust EventFund may become a party or successor to a party due to a foreclosure, deed in lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to a Mortgage Loan) shall not cause or allow REMIC I to receive, any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) through (iv) above with respect to such REO Property, the Master Special Servicer shall, at the direction of the Special Servicer, make Servicing Advances shall (subject to its right to be reimbursed therefor as provided in Sections 3.05(a) and 3.19(b) hereof) advance such amounts as are necessary for such purposes unless (as evidenced by an Officer's Certificate delivered to the Master Trustee) the Special Servicer would not make such advances if the Special Servicer owned such REO Property or the Special Servicer determines, in accordance with the Servicing Standardits reasonable good faith judgment, that such payment advances would be a Nonrecoverable AdvanceServicing Advances; provided, however, that the Master Special Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and;
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.; and
(evi) such Independent Contractor is acceptable to each Rating Agency, and such appointment will not result in a qualification, downgrading or withdrawal of any of the ratings then assigned to the Certificates by such Rating Agency (as evidenced in writing by each such Rating Agency). The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) If the costs of any contract with any Independent Contractor for the operation and management of any REO Property are greater than the revenues available from such property, the excess of such costs over such revenues shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22Advance.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Criimi Mae CMBS Corp), Pooling and Servicing Agreement (Criimi Mae CMBS Corp)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable feasible means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the maximum extent possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax REMIC Administrator's tax reporting positionexpenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(f). The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based and in any case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers and asset managers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective Mortgaged Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax REMIC Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a)(xiii) consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If Subject to Section 3.17(a)(iii), if title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) not cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool I, REMIC II or REMIC III of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) - (iv) above with respect to such REO Property, the Master Special Servicer shall, at the direction of the Special Servicer, shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officers' Certificate delivered to the Trustee and the Master Servicer) the Special Servicer would not make such advances if the Special Servicer owned such REO Property or the Special Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Special Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered the REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations Regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc), Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property (other than holding such REO Property primarily for sale to customers (other than the sale of REO Property pursuant to Section 3.18), or the performance of any construction work thereon) by such Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the such Special Servicer may (provided that in the good faith and reasonable judgment of the such Special Servicer, exercised in accordance with the Servicing Standard, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or otherwise operate such REO Property or, in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any REO Tax and will maximize the net recovery from the REO Property to the Certificateholders then the Special Servicer may so operate the REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the such Special Servicer shall deliver to the Tax AdministratorTrustee and the Controlling Class Representative, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, income and good faith estimates of the amount of income from each such source. Upon request Within a reasonable period of the Special Servicertime after receipt of such plan, the Tax Administrator Trustee shall consult with such Special Servicer and shall advise the such Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Trustee shall (to the maximum extent reasonably possible) advise such Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax AdministratorTrustee, the such Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall shall, subject to Section 3.17(b), be based on in accordance with the Servicing Standard and, further, based on the good faith and reasonable judgment of Standard. Neither the Special Servicer as nor the Trustee shall be liable to which means would be the Certificateholders, the Trust, the other parties hereto or each other for errors in judgment made in good faith in the best interest exercise of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with their discretion while performing their respective duties responsibilities under this Section 3.17(a), both . Nothing in this Section 3.17(a) is intended to prevent the Special Servicer sale of an REO Property pursuant to the terms and subject to the Tax Administrator may consult with counsel and tax accountants, the reasonable cost conditions of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special ServicerSection 3.18.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in and for the case benefit of any Administered the holder of the B Loan Holder if such REO Property is related to a Serviced an A/B Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Pair) solely for the purpose of its prompt disposition and sale in accordance with Section 3.18, in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) Code or, except as contemplated by Section 3.17(a), either result in the receipt by any either Trust REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result Code, in an Adverse REMIC Event with respect to any Trust REMIC or in an Adverse Grantor Trust EventEvent with respect to the Grantor Trust. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in with respect of to any Administered REO Property are insufficient for the purposes set forth in contemplated by the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make a Servicing Advances in Advance of such amounts as are necessary for such purposes unless the such Master Servicer or such Special Servicer determines, in accordance with the Servicing Standardits reasonable judgment, that such payment would advances would, if made, be a Nonrecoverable AdvanceServicing Advances; provided, however, that the such Master Servicer may in its sole discretion make any such Servicing Advance without regard to recoverability (and be reimbursed for such Advance as a Nonrecoverable Advance) if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) permit the Trust Fund to enter into, renew or extend any New Lease with respect to such Administered any REO Property, if the New Lease, Lease by its terms would will give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered any REO Property, other than the repair or maintenance thereof or the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) except as provided for in Section 3.17(a)(i) and (a)(ii) above, Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered Operate, any REO Property on any date more than 90 days after the related REO Acquisitionits Acquisition Date; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable Servicer as a Servicing AdvanceAdvance unless non-recoverable) to the effect that such action would will not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Poolthe Trust Fund, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. Except as limited above in this Section 3.17 and by Section 3.17(d), the Special Servicer shall be permitted to cause the Trust Fund to earn "net income from foreclosure property," subject to the Servicing Standard.
(d) The Special Servicer may may, and if so required for any REO Property to qualify or remain qualified as "foreclosure property" within the meaning of Section 860G(a)(8), shall contract with any Independent Contractor for the operation and management of any Administered REO Property; Property related to a Mortgage Loan for which it acts as Special Servicer, provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Trust) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the such Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the such Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the such Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the such Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) To the extent the costs of any contract with any Independent Contractor for the operation and management of any REO Property are greater that the revenues available from such property, such excess costs shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything paid by and reimbursable to the contrary, this Section 3.17 shall not apply to any Outside Administered REO PropertyMaster Servicer as a Servicing Advance.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Credit Suisse Commercial Mortgage Trust Series 2006-C3)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review in its good faith and reasonable judgment, that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and, in the good faith and that reasonable judgment of the Special Servicer, no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the Trustee shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax AdministratorTrust Fund's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Trustee shall (to the maximum extent possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax AdministratorTrustee, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall in any event be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) maximize the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and adversely affecting the Special Servicer's ability to promptly sell such property the REO Property in accordance with this Agreement and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Both the Special Servicer and the Trustee may consult with counsel for a fair price. In connection with performing their respective duties determinations required under this Section 3.17(a), both . Neither the Special Servicer and nor the Tax Administrator may consult with counsel and tax accountantsTrustee shall be liable to the Certificateholders, the Trust Fund, the other parties hereto or each other for errors in judgment made in good faith in the reasonable cost exercise of which consultation shall be covered by, their discretion while performing their respective responsibilities under this Section 3.17(b) below. Nothing in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 3.18 or 3.19.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, selldispose of, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Special Servicer shall request the Master Servicer shall, at the direction of the Special Servicer, to make Servicing Advances in such amounts as are necessary for such purposes unless the Master Special Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered any REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered any REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan occurred or became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered any Mortgaged Property as REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable Servicer as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by REMIC I (or, if applicable, a REMIC PoolLoan REMIC), in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may may, and if required to prevent the REO Property from failing to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code, shall contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in if not paid from reserves from the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Property) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (CDC Commercial Mortgage Trust 2002-Fx1)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the applicable Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the applicable Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the such Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the such Special Servicer may (provided that in the good faith and reasonable judgment of the such Special Servicer, exercised in accordance with the Servicing Standard, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or otherwise operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the then such Special Servicer shall deliver to the Tax AdministratorAdministrator and the Controlling Class Representative, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, income and good faith estimates of the amount of income from each such source. Upon request Within a reasonable period of the Special Servicertime after receipt of such plan, the Tax Administrator shall consult with the Special Servicer and shall advise the such Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Tax Administrator shall (to the maximum extent reasonably possible and at a reasonable fee, which fee shall be an expense of the Trust) advise such Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax Administrator, the such Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. Subject to Section 3.17(b), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The applicable Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on in accordance with the Servicing Standard andStandard. Neither the applicable Special Servicer nor the Tax Administrator shall be liable to the Certificateholders, furtherthe Trustee, based on the Trust, the other parties hereto or each other for errors in judgment made in good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest exercise of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with their discretion while performing their respective duties responsibilities under this Section 3.17(a), both ) with respect to any REO Property. Nothing in this Section 3.17(a) is intended to prevent the Special Servicer sale of any REO Property pursuant to the terms and subject to the Tax Administrator may consult with counsel and tax accountants, the reasonable cost conditions of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special ServicerSection 3.18.
(b) If title to any Administered REO Property is acquired, the applicable Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered an REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(sother than the RREEF Textron Mortgage Loan Pair) or the Certificateholders and the RREEF Textron B-Note Holder (in the case of an REO Property related to the RREEF Textron Mortgage Loan Pair)) , in either case as a collective whole, solely for the purpose of its prompt disposition and sale in accordance with Section 3.18, in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result Code, in an Adverse REMIC Event with respect to any REMIC Pool or in an Adverse Grantor Trust EventEvent with respect to either Grantor Trust Pool. Except as contemplated by Section 3.17(a), the applicable Special Servicer shall not enter into any lease, contract or other agreement with respect to any REO Property that causes the Trust to receive, and (unless required to do so under any lease, contract or agreement to which the applicable Special Servicer or the Trust may become a party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to the related Mortgage Loan) shall not, with respect to any REO Property, cause or allow the Trust to receive, any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the applicable Special Servicer shall have full power and authority to do any and all things in connection therewith with the administration of any REO Property, as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related its REO AccountAccount , to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related applicable Special Servicer's REO Account in with respect of to any Administered REO Property are insufficient for the purposes set forth in contemplated by the preceding sentence with respect to such REO Property, the applicable Master Servicer shall, at the direction of the Special Servicer, but subject to Section 3.19, make a Servicing Advances in Advance of such amounts as are necessary for such purposes unless the such Master Servicer or such Special Servicer determines, in accordance with the Servicing Standardits reasonable judgment, that such payment would advances would, if made, be a Nonrecoverable AdvanceServicing Advances; provided, however, that the such Master Servicer may in its sole discretion make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Sec Tr 2002-Pbw1)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review thatin compliance with the Servicing Standard that in its good faith and reasonable judgment:
(i) None of the income from Directly Operating directly operating such Mortgaged REO Property would be subject to tax as "“net income from foreclosure property" ” within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "“REO Tax"”), and the Special Servicer does not engage in any of the activities described in the definition of “Directly Operate” that would cause the REO Property to cease to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code, then such Mortgaged Property may be Directly Operated directly operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it such alternative is commercially reasonablefeasible and would result in a greater net recovery on a present value basis than earning income subject to an REO Tax) acquire such Mortgaged Property as REO Property and so lease or operate manage such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no such method of operation is commercially reasonable means exists to operate such property as feasible and would result in a greater net recovery on a present value basis than leasing or other method of operating the REO Property without the Trust Fund incurring or possibly incurring that would not incur an REO Tax on income from such propertyTax, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "“Proposed Plan"”) to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's ’s federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax REMIC Administrator's tax reporting position’s expenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this Section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(e). The Special Servicer's ’s decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based and in any case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (andor, in if the case of any Administered REO Property related to was formerly a Serviced Loan CombinationMortgaged Property securing a Co-Lender Loan, the Certificateholders and the related Serviced Non-Trust Mortgage Loan Noteholder(s)), Companion Holder (as a collective wholewhole in accordance with the Servicing Standard, taking into account the subordinate nature of the Companion Loan, if applicable)) by maximizing (to the extent commercially reasonable feasible and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective Mortgaged Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax REMIC Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a)(xiv), consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, conserve and protect and operate such REO Property for the benefit of the Certificateholders (andor, in if the case of any Administered REO Property related to was formerly a Serviced Loan CombinationMortgaged Property securing a Co-Lender Loan, the Certificateholders and the related Serviced Non-Trust Mortgage Loan Noteholder(sCompanion Holder (as a collective whole in accordance with the Servicing Standard, taking into account the subordinate nature of the Companion Loan, if applicable)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) not cause such REO Property to fail to qualify as "“foreclosure property" ” within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool I of any "“income from non-permitted assets" ” within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate manage and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, subject to the second paragraph of Section 3.03(c), shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officer’s Certificate delivered to the Trustee) the Master Servicer would not make such advances if the Master Servicer owned such REO Property or the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoingUnless Section 3.17(a)(i) applies, the Special Servicer shall not, contract with respect to any Administered REO Property:
Independent Contractor (i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid required by the Master Servicer, at REMIC Provisions for the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify remain classified as "“foreclosure property" ” within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(aCode) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's ’s length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(fd) Notwithstanding anything Without limiting the generality of the foregoing, the Special Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New Lease with respect to any REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property, other than the repair or maintenance thereof or the completion of a building or other improvement thereon and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Mortgage Loan become imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) except as otherwise provided for in Section 3.17(a)(i) and (a)(ii) above, Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate, any REO Property on any date more than 90 days after its Acquisition Date; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer as a Servicing Advance unless nonrecoverable) to the contraryeffect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code at any time that it is held by the Trust Fund, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. Except as limited above in this Section 3.17 and by this Section 3.17(d), the Special Servicer shall not apply be permitted to any Outside Administered REO Propertycause the Trust Fund to earn “net income from foreclosure property”, subject to the Servicing Standard.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2006-C24)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an the Outside Serviced Loan CombinationMortgage Loan), the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review thatin compliance with the Servicing Standard that in its good faith and reasonable judgment:
(i) None of the income from Directly Operating such Mortgaged Administered REO Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), and the Special Servicer does not engage in any of the activities described in the definition of "Directly Operate" that would cause such Administered REO Property to cease to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code, then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it such alternative is commercially reasonablefeasible and would result in a greater net recovery on a present value basis than earning income subject to an REO Tax) acquire such Mortgaged Property as REO Property and so lease or operate manage such Administered REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no such method of operation is commercially reasonable means exists to operate feasible and would result in a greater net recovery on a present value basis than leasing or other method of operating such property as Administered REO Property without the Trust Fund incurring or possibly incurring that would not incur an REO Tax on income from such propertyTax, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of the Special Servicertime after receipt of such plan, the Tax Administrator shall consult with the Special Servicer and shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Tax Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax Administrator's tax reporting positionexpenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(e). The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based and in any case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered A/B REO Property related to a Serviced Loan CombinationProperty, the related Serviced NonB-Trust Mortgage Loan Noteholder(s)), ) (as a collective whole, ) by maximizing (to the extent commercially reasonable feasible and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective REO Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a) and, to the extent such amounts relate to an A/B Loan Combination and/or an A/B REO Property, at the expense of the Trust Fund and the related B-Noteholder(s) payable pursuant to Section 3.05(g), consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, conserve and protect and operate such Administered REO Property for the benefit of the Certificateholders (and, in the case of any Administered A/B REO Property related to a Serviced Loan CombinationProperty, the related Serviced NonB-Trust Mortgage Loan Noteholder(s)) (as a collective whole) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either and will not result in either (i) the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in (ii) an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such Administered REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such Administered REO Property;
(ii) all real estate taxes and assessments in respect of such Administered REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such Administered REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate manage and restore such Administered REO Property. To the extent that amounts on deposit in the related applicable REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such Administered REO Property, the Master Servicer shall, at the direction of the Special Servicer, subject to the second paragraph of Section 3.03(c), shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officer's Certificate delivered to the Trustee and the Fiscal Agent) the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoingUnless Section 3.17(a)(i) applies, the Special Servicer shall not, contract with respect to any Administered REO Property:
Independent Contractor (i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid required by the Master Servicer, at REMIC Provisions for the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such subject Administered REO Property to fail to qualify remain classified as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(aCode) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(fd) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Securities Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable feasible means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the maximum extent possible) advise the Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) the net after-tax REO Revenues received by the Trust with respect to such property without materially impairing its marketability and, to the extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers and asset managers operating acquired mortgaged property comparable to such REO Property. Both the Special Servicer's ability Servicer and the REMIC Administrator may consult with counsel knowledgeable in such matters at (to promptly sell such property for a fair price. In the extent reasonable) the expense of the Trust in connection with performing their respective duties determinations required under this Section 3.17(a), both . Neither the Special Servicer and nor the Tax REMIC Administrator may consult with counsel and tax accountantsshall be liable to the Certificateholders, the Trust, the other parties hereto or each other for errors in judgment made in good faith in the reasonable cost exercise of which consultation shall be covered bytheir discretion while performing their respective responsibilities under this Section 3.17(a) or, to the extent it relates to federal income tax consequences for the Trust, Section 3.17(b) below. Nothing in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 3.18.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either -104- result in the receipt by any either of REMIC Pool I or REMIC II of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event in respect of any such REMIC. Except as provided in Section 3.17(a), the Special Servicer shall not enter into any lease, contract or an Adverse Grantor other agreement that causes REMIC I to receive, and (unless required to do so under any lease, contract or agreement to which the Special Servicer or the Trust Eventmay become a party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to a Mortgage Loan) shall not cause or allow REMIC I to receive any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; ;] and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) through [(iv)] above with respect to such REO Property, the Special Servicer shall direct the Master Servicer shall, at to make (and the direction of the Special Servicer, make Master Servicer shall so make) Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced in the manner contemplated by Section 3.11(g)) the Special Servicer or the Master Servicer determines, in accordance with the Servicing Standardits reasonable, good faith judgment, that such payment would be a Nonrecoverable Servicing Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may (and, except as otherwise permitted by Section 3.17(a), shall if it would avoid an Adverse REMIC Event) contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor [(which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(sTrust)) ] shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
; [(iii) except as permitted under Section 3.17(a), any such contract shall requirebe consistent with the provisions of Treasury Regulation ss.1.856-4(b)(5) and, or to the extent consistent therewith, shall be administered to require, require that the Independent Contractor, in a timely manner, (A) to the extent of available revenue from the REO Property, pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of [its fees and and] such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc)
Management of REO Property. (a) Prior In the event the Trust acquires ownership of any REO Property in respect of any Mortgage Loan, the deed or certificate of sale shall be issued to the acquisition by it Indenture Trustee, or to its nominee, on behalf of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination), the Special Securityholders. The Servicer shall review use its reasonable best efforts to sell, any REO Property as expeditiously as possible and in accordance with the operation provisions of such Mortgaged Property this Agreement, as applicable, but in all events within the time period, and determine subject to the nature conditions set forth in Section 5.09 and prior to the close of the income that would be derived from such property if it were acquired third taxable year after its acquisition by the Trust Fund. If unless the Special Servicer determines from such review that:
Indenture Trustee and (i) None of the income from Directly Operating such Mortgaged Property would be subject to tax so long as "net income from foreclosure property" within the meaning of the REMIC Provisions any Class A Notes are Outstanding or would be subject any Reimbursement Amounts remain due and owing to the tax imposed Insurer and no Insurer Default has occurred and is continuing) the Insurer shall have been supplied with an Opinion of Counsel to the effect that the holding by the Trust of such REO Property subsequent to such three-year period will not result in the imposition of taxes on "prohibited transactions" of any REMIC created under Section the Trust Agreement as defined in section 860F of the Code or cause any REMIC created hereunder to fail to qualify as a REMIC at any time that any Notes or Certificates are Outstanding, in which case the Trust may continue to hold such REO Property (either subject to any conditions contained in such tax referred Opinion of Counsel and the other requirements of this Section 3.07(a)). Pursuant to herein as an "REO Tax"), then its efforts to sell such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating , the Servicer shall protect and conserve, such Mortgaged Property as REO Property could result in income from the manner and to such property that would extent required by this Agreement, subject to Section 5.09 hereof. The decision of the Servicer to foreclose, or to continue the foreclosure process, on a defaulted Mortgage Loan shall be subject to an REO Tax, but a determination by the Servicer that a lease the related Mortgaged Property will not fail to qualify as "foreclosure property" within meaning of Section 860G(a)(8) of the Code and that the proceeds of such property foreclosure would more likely than not exceed the costs and expenses of bringing such a proceeding and liquidating the REO Property expected to another party be obtained through such foreclosure. Notwithstanding any other provision of this Agreement, no Mortgaged Property acquired by the Trust shall be rented (or allowed to operate such property, continue to be rented) or otherwise used for the performance production of some services income by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment on behalf of the Special Servicer, it is commercially reasonable) acquire Trust in such Mortgaged Property as REO Property and so lease a manner or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title pursuant to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner terms that does not and will not: would (i) cause such REO Mortgaged Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by subject any REMIC created under the Trust Agreement to the imposition of any federal, state or local income taxes on the income earned from such Mortgaged Property, unless the Servicer has agreed to indemnify and hold harmless the Trust and the Trust Estate with respect to the imposition of any such taxes.. The Servicer shall cause to be deposited, within the time period specified in Section 3.17(a3.02(b), either result as applicable, in the receipt by any REMIC Pool Collection Account, all revenues net of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject Servicing Advances received with respect to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO AccountProperty and shall retain, or cause to the extent of amounts on deposit therein with respect to any Administered REO Propertybe withdrawn therefrom, funds necessary for the proper operation, management, management and maintenance of the REO Property and the fees of any managing agent acting on behalf of the Servicer. The disposition of REO Property shall be carried out by the Servicer for cash at such REO Propertyprice, including:
(i) all insurance premiums due and payable upon such terms and conditions, as the Servicer deems to be in respect the best interest of the Noteholders, the Certificateholders, the Trust and the Insurer and, as soon as practicable thereafter, the expenses of such REO Property;
(ii) all real estate taxes and assessments in respect sale shall be paid. The cash proceeds of such the sale of the REO Property that may result shall be promptly deposited in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary Collection Account, pursuant to maintainSection 3.02(b), leaseas applicable, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect net of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make related unreimbursed Servicing Advances in such (without duplication of amounts as are necessary for such purposes unless paid pursuant to Section 3.03(vi)), payable to the Master Servicer determines, in accordance with the Servicing StandardSection 3.03, that such for payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection accordance with the defense or prosecution of legal proceedingsSection 5.01 herein.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is would not be commercially reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax operate and that no commercially reasonable means exists to operate manage such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, then the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possible, estimates of the amount of income from each such source. Upon request Within a reasonable period of the Special Servicertime after receipt of such plan, the Tax Administrator shall consult with the Special Servicer and shall advise the Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Tax Administrator shall (to the maximum extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income from such REO Property. After receiving the information described in the two preceding sentence sentences from the Tax Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) the net after-tax REO Revenues received by the Trust with respect to such property without materially impairing its marketability and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers and asset managers operating acquired mortgaged property comparable to promptly sell such property for a fair priceREO Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, knowledgeable in such matters at (to the reasonable cost extent reasonable) the expense of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, Trust in connection with determinations required under this Section 3.17(a). Neither the Special Servicer nor the Tax Administrator shall managebe liable to the Certificateholders, conservethe Trust, protect and operate such REO Property the other parties hereto or each other for the benefit of the Certificateholders (and, errors in judgment made in good faith in the case reasonable exercise of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition their discretion or in reasonable and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default good faith reliance on the related Serviced Mortgage Loan became imminent, all within the meaning advice of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted knowledgeable counsel while performing their respective responsibilities under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.this
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Com Mor Pas THR Cer Se 1999-C1)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review review, in its good faith and reasonable judgment, that:
(i) None none of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO TaxTAX"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property Mortgaged Property that would be subject to an REO Tax, but that a lease of such property Mortgaged Property to another party to operate such propertyMortgaged Property, or the performance of some services by an Independent Contractor with respect to such propertyMortgaged Property, or another method of operating such property Mortgaged Property would not result in income subject to an REO Tax, then the Special Servicer may (provided that that, in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property Mortgaged Property as REO Property could result in income subject to an REO Tax and, in the good faith and reasonable judgment of the Special Servicer, that no commercially reasonable feasible means exists to operate such property Mortgaged Property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such propertyMortgaged Property, then the Special Servicer shall deliver to the Tax AdministratorTrustee, in writing, a proposed plan (the "Proposed PlanPROPOSED PLAN") to manage such property Mortgaged Property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the Trustee shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Trustee shall (to the maximum extent possible) advise the Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax AdministratorTrustee, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such REO Property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such REO Property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall in any event be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer Servicer, consistent with the Servicing Standard, as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) maximize the net after-tax REO Revenues Income received by the Trust with respect to such property REO Property without materially impairing and adversely affecting the Special Servicer's ability to promptly sell such property for a fair priceREO Property in accordance with this Agreement. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax Administrator Trustee may consult with counsel and tax accountantsknowledgeable in such matters at the expense of the Trust Fund in connection with determinations required under this Section 8.20(a). Neither the Special Servicer nor the Trustee shall be liable to the Certificateholders, the Trust, the other parties hereto or each other for errors in judgment made in good faith in the reasonable cost exercise of which consultation shall be covered bytheir discretion while performing their respective responsibilities under this Section 8.20(a) or, to the extent it relates to federal income tax consequences for the Trust, Section 8.20(b) below. Nothing in this Section 8.20(a) is intended to prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 8.31.
(b) If title to any Administered REO Property is acquired, the Special Servicer or an Independent Contractor chosen by the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool the Trust of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event Event. Except as otherwise expressly provided herein, the Special Servicer shall not enter into any lease, contract or an Adverse Grantor other agreement that causes REMIC I to receive, and (unless required to do so under any lease, contact or agreement to which the Special Servicer or the Trust Eventmay become a party or a successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to a Mortgage Loan) shall not cause or allow REMIC I to receive, any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with in the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent best interests of amounts on deposit therein with respect to any Administered REO Property, funds necessary and for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction benefit of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, Certificateholders in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that Standard (as determined by the Master Special Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedingsits good faith and reasonable judgment).
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the The terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses an expense of the Trust Fund andTrust, in the case payable out of any Administered related REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Income) shall be reasonable and customary in consideration light of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, Contractor (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in subsection (b) of this Section 3.17(b) above, 8.20 and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues REO Income collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d8.20(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc Depositor for Series 1999-Fnv1)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than with respect to a Mortgaged Property that secures an Outside Serviced Loan Combination)Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property as REO Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer (other than the holding of such Mortgaged Property for sale to customers in the ordinary course of trade or business or the performance of any construction work thereon) as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property Mortgaged Property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting positionposition or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on income derived from such property. The Special Servicer's decision as to how each Administered REO Property Property, shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, or in the case of any Administered a Loan Group REO Property related to a Serviced Property, in the best interest of the Certificateholders and the applicable Companion Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), Noteholders (as a collective whole, )) by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and adversely affecting the Special Servicer's ability to promptly sell such property for a fair pricethe REO Property in accordance with this Agreement and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. In connection with performing their respective duties under this Section 3.17(a3.18(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property Property, is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, or in the case of any Administered a Loan Group REO Property related to Property, in the best interest of the Certificateholders and the applicable Companion Loan Noteholders (as a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(scollective whole)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a3.18(a), either result in the receipt by any either REMIC Pool or any Loan REMIC of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related applicable REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related applicable REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Special Servicer shall, at the direction of the Special Servicer, shall make Servicing Advances in such amounts as are necessary for such purposes unless the Master Special Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Special Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings. The Special Servicer shall notify the Master Servicer if it shall have made any such Servicing Advance within the previous 30-day period.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered any REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered any REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered any Mortgaged Property as REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable Servicer as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Poolthe Lower-Tier REMIC, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may may, and if so required to prevent the REO Property from failing to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code, shall contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of or with respect to any Administered Loan Group REO Property that relates such fees shall be netted out of collections on such Loan Group REO Property prior to a Serviced Loan Combination, their being remitted to the related Serviced Non-Trust Mortgage Loan Noteholder(s)Special Servicer) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a3.18(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b3.18(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Treasury Regulations Section 1.856-4(b)(5) of the Treasury regulations or any successor provision)), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.18(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 3.17 and this Section 3.17 3.18 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d3.18(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.223.23.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Management of REO Property. (a) Prior to the acquisition by it of title to a Serviced Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Serviced Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Serviced Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO PropertyProperty (other than performing any construction work on such REO Property or selling all or any portion of such REO Property to customers in the ordinary course of a trade or business);
(ii) Directly Operating such Serviced Mortgaged Property as an Administered REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special ServicerServicer (exercised in accordance with the Servicing Standard), it such alternative is commercially reasonable) acquire such Serviced Mortgaged Property as Administered REO Property and so lease or operate such Administered REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as Administered REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as Administered REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Serviced Mortgaged Property as Administered REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders ) or (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)B) the net after-tax REO Revenues received with respect to manage such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does would not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
an REO Tax on the income derived from such property. All of the REMIC Administrator's expenses (iii) including any ground rents in respect of such REO Property; and
(iv) all costs fees and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building counsel or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(Bexperts reasonably retained by it) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of reimbursed to it from the Trust Fund in accordance with Section 3.2210.01(e).
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2007-8)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable feasible means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax AdministratorIn addition, the Special Servicer REMIC Administrator shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)reasonably possible) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve advise the Special Servicer of any the estimated amount of its duties and obligations hereunder taxes that the Trust Fund would be required to pay with respect to the operation and management each such source of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.110
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable feasible means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the maximum extent possible) advise the Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) the net after-tax REO Revenues received by the Trust with respect to such property without materially impairing its marketability and, to the extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers and asset managers operating acquired mortgaged property comparable to such REO Property. Both the Special Servicer's ability Servicer and the REMIC Administrator may consult with counsel knowledgeable in such matters at (to promptly sell such property for a fair price. In the extent reasonable) the expense of the Trust in connection with performing their respective duties determinations required under this Section 3.17(a), both . Neither the Special Servicer and nor the Tax REMIC Administrator may consult with counsel and tax accountantsshall be liable to the Certificateholders, the Trust, the other parties hereto or each other for errors in judgment made in good faith in the reasonable cost exercise of which consultation shall be covered bytheir discretion while performing their respective responsibilities under this Section 3.17(a) or, to the extent it relates to federal income tax consequences for the Trust, Section 3.17(b) below. Nothing in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 3.18.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any either of REMIC Pool I or REMIC II of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event in respect of any such REMIC. Except as provided in Section 3.17(a), the Special Servicer shall not enter into any lease, contract or an Adverse Grantor other agreement that causes REMIC I to receive, and (unless required to do so under any lease, contract or agreement to which the Special Servicer or the Trust Eventmay become a party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to a Mortgage Loan) shall not cause or allow REMIC I to receive any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) through (iv) above with respect to such REO Property, the Special Servicer shall direct the Master Servicer shall, at to make (and the direction of the Special Servicer, make Master Servicer shall so make) Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced in the manner contemplated by Section 3.11(g)) the Special Servicer or the Master Servicer determines, in accordance with the Servicing Standardits reasonable, good faith judgment, that such payment would be a Nonrecoverable Servicing Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may (and, except as otherwise permitted by Section 3.17(a), shall if it would avoid an Adverse REMIC Event) contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Trust) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall requirebe consistent with the provisions of Treasury Regulation ss.1.856-4(b)(5) and, or to the extent consistent therewith, shall be administered to require, require that the Independent Contractor, in a timely manner, (A) to the extent of available revenue from the REO Property, pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and;
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.; and
(evi) the appointment of such Independent Contractor will not result in a qualification, downgrading or withdrawal of any of the ratings then assigned to the Certificates by such Rating Agency (as evidenced in writing or otherwise by such Rating Agency). The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Mortgage Capital Funding Inc)
Management of REO Property. (a) The terms of this Section 3.17(a) shall only take effect in the event the Class F, Class G and Class H Certificates are no longer outstanding. Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is 101 commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable feasible means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax REMIC Administrator's tax reporting positionexpenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(f). The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based and in any case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable feasible and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers and asset managers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective Mortgaged Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax REMIC Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a)(xiii) consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) not cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.Section
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the reasonable good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or otherwise operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable feasible means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the maximum extent possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based in either case on the Servicing Standard and, further, based on the reasonable good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, to the extent consistent with the foregoing, in the case of any Administered same manner as would prudent mortgage loan servicers and asset managers operating acquired mortgaged property comparable to the respective REO Property related to a Serviced Loan Combination, under the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing same circumstances. Both the Special Servicer's ability to promptly sell such property for a fair price. In Servicer and the REMIC Administrator may consult with counsel or financial advisers at the expense of the Trust Fund in connection with performing their respective duties determinations required under this Section 3.17(a), both . Neither the Special Servicer and nor the Tax REMIC Administrator may consult with counsel and tax accountantsshall be liable to the Certificateholders, the reasonable cost Trust Fund, the other parties hereto or each other for errors in judgment made in good faith in the exercise of which consultation shall be covered by, their discretion while performing their respective responsibilities under this Section 3.17(a). Nothing in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 3.18.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool I, REMIC II or REMIC III of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event in respect of any such REMIC. Except as provided in Section 3.17(a), the Special Servicer shall not enter into any lease, contract or an Adverse Grantor other agreement that causes REMIC I to receive, and (unless required to do so under any lease, contract or agreement to which the Special Servicer or the Trust EventFund may become a party or successor to a party due to a foreclosure, deed in lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to a Mortgage Loan) shall not cause or allow REMIC I to receive, any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) through (iv) above with respect to such REO Property, the Master Special Servicer shall, at the direction of the Special Servicer, make Servicing Advances shall (subject to its right to be reimbursed therefor as provided in Sections 3.05(a) and 3.19(b) hereof) advance such amounts as are necessary for such purposes unless (as evidenced by an Officer's Certificate delivered to the Master Trustee) the Special Servicer would not make such advances if the Special Servicer owned such REO Property or the Special Servicer determines, in accordance with the Servicing Standardits reasonable good faith judgment, that such payment advances would be a Nonrecoverable AdvanceServicing Advances; provided, however, that the Master Special Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and;
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.; and
(evi) such Independent Contractor is acceptable to each Rating Agency, and such appointment will not result in a qualification, downgrading or withdrawal of any of the ratings then assigned to the Certificates by such Rating Agency (as evidenced in writing by each such Rating Agency). The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) To the extent the costs of any contract with any Independent Contractor for the operation and management of any REO Property are greater than the revenues available from such property, such costs shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22Advance.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (DLJ Commercial Mortgage Corp)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than with respect to a Mortgaged Property that secures an Outside Serviced Loan Combination)Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property as REO Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer (other than the holding of such Mortgaged Property for sale to customers in the ordinary course of trade or business or the performance of any construction work thereon) as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property Mortgaged Property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting positionposition or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on income derived from such property. The Special Servicer's decision as to how each Administered REO Property Property, shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, or in the case of any Administered a Loan Group REO Property related to a Serviced Property, in the best interest of the Certificateholders and the applicable Companion Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), Noteholders (as a collective whole, )) by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b3.18(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and adversely affecting the Special Servicer's ability to promptly sell such property the REO Property in accordance with this Agreement and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Neither the Special Servicer nor the Tax Administrator shall be liable to the Certificateholders, the Trust Fund, the other parties hereto or each other for a fair priceerrors in judgment made in good faith in the reasonable exercise of their discretion while performing their duties under this Section 3.18 except as provided in Section 6.03. In connection with performing their respective duties under this Section 3.17(a3.18(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property Property, is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, or in the case of any Administered a Loan Group REO Property related to Property, in the best interest of the Certificateholders and the applicable Companion Loan Noteholders (as a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(scollective whole)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a3.18(a), either result in the receipt by any either REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related applicable REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related applicable REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, shall make Servicing Advances in such amounts as are necessary for such purposes unless the Special Servicer or the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer or the Special Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings. The Special Servicer shall notify the Master Servicer if it shall have made any such Servicing Advance within the previous 30-day period.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered any REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered any REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Except as provided in Section 3.18(a)(i), Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered any Mortgaged Property as REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance, or, if such Servicing Advance would be a Nonrecoverable Advance, shall be paid out of the Custodial Account as an Additional Trust Fund Expense) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Poolthe Lower-Tier REMIC, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may may, and if so required to prevent the REO Property from failing to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code, shall contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of or with respect to any Administered Loan Group REO Property that relates such fees shall be netted out of collections on such Loan Group REO Property prior to a Serviced Loan Combination, their being remitted to the related Serviced Non-Trust Mortgage Loan Noteholder(s)Special Servicer) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a3.18(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b3.18(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Treasury Regulations Section 1.856-4(b)(5) of the Treasury regulations or any successor provision)), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.18(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 3.17 and this Section 3.17 3.18 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d3.18(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.223.23.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting positionTax. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based in either case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers and asset managers operating acquired mortgaged property comparable to the respective Mortgaged Property. Both the Special Servicer's ability Servicer and the REMIC Administrator may, at the expense of the Trust Fund payable pursuant to promptly sell Section 3.05(a)(xiii) consult with counsel and/or tax accountants with respect to the federal tax reporting position as to the various sources of income, the estimated amount of taxes required to be paid as to each such property for a fair price. In connection with performing their respective duties source of income and the determinations required under this Section 3.17(a), both . Neither the Special Servicer and nor the Tax REMIC Administrator may consult with counsel and tax accountantsshall be liable to the Certificateholders, the reasonable cost Trust Fund, the Trustee, the Master Servicer or each other for errors in judgment made in good faith in the exercise of which consultation shall be covered by, their discretion while performing their respective responsibilities under this Section 3.17(a). Nothing in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage Loan pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 3.18.
(b) If Subject to Section 3.17(a)(iii), if title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) not cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool I, REMIC II or REMIC III of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, management and maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) - (iv) above with respect to such REO Property, the Master Special Servicer shall, at the direction of the Special Servicer, shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officers' Certificate delivered to the Trustee and the Master Servicer) the Special Servicer would not make such advances if the Special Servicer owned such REO Property or the Special Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Special Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered the REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(51.85b-6(b)(5) of the Treasury regulations Regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review thatin compliance with the Servicing Standard that in its good faith and reasonable judgment:
(i) None of the income from Directly Operating directly operating such Mortgaged REO Property would be subject to tax as "“net income from foreclosure property" ” within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "“REO Tax"”), and the Special Servicer does not engage in any of the activities described in the definition of “Directly Operate” that would cause the REO Property to cease to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code, then such Mortgaged Property may be Directly Operated directly operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it such alternative is commercially reasonablefeasible and would result in a greater net recovery on a present value basis than earning income subject to an REO Tax) acquire such Mortgaged Property as REO Property and so lease or operate manage such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no such method of operation is commercially reasonable means exists to operate such property as feasible and would result in a greater net recovery on a present value basis than leasing or other method of operating the REO Property without the Trust Fund incurring or possibly incurring that would not incur an REO Tax on income from such propertyTax, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "“Proposed Plan"”) to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's ’s federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax REMIC Administrator's tax reporting position’s expenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this Section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(e). The Special Servicer's ’s decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based and in any case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (andor, in if the case of any Administered REO Property related to was formerly a Serviced Loan CombinationMortgaged Property securing a Co-Lender Loan, the Certificateholders and the related Serviced Non-Trust Mortgage Loan Noteholder(s)), Companion Holder (as a collective whole, whole in accordance with the Servicing Standard)) by maximizing (to the extent commercially reasonable feasible and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective Mortgaged Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax REMIC Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a)(xiv) consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, conserve and protect and operate such REO Property for the benefit of the Certificateholders (andor, in if the case of any Administered REO Property related to was formerly a Serviced Loan CombinationMortgaged Property securing a Co-Lender Loan, the Certificateholders and the related Serviced Non-Trust Mortgage Loan Noteholder(sCompanion Holder (as a collective whole in accordance with the Servicing Standard)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) not cause such REO Property to fail to qualify as "“foreclosure property" ” within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool I of any "“income from non-permitted assets" ” within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate manage and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, subject to the second paragraph of Section 3.03(c), shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officer’s Certificate delivered to the Trustee) the Master Servicer would not make such advances if the Master Servicer owned such REO Property or the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) permit the Trust Fund to enter into, renew or extend any New Lease with respect to such Administered any REO Property, if the New Lease, Lease by its terms would will give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered any REO Property, other than the repair or maintenance thereof or the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became become imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) except as otherwise provided for in Section 3.17(a)(i) and (a)(ii) above, Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered Operate, any REO Property on any date more than 90 days after the related REO Acquisition; its Acquisition Date, unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable Servicer as a Servicing AdvanceAdvance unless nonrecoverable) to the effect that such action would will not cause such Administered REO Property to fail to qualify as "“foreclosure property" ” within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Poolthe Trust Fund, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. Except as limited above in this Section 3.17 and by Section 3.17(d), the Special Servicer shall be permitted to cause the Trust Fund to earn “net income from foreclosure property”, subject to the Servicing Standard.
(d) The Unless Section 3.17(a)(i) applies, the Special Servicer may shall contract with any Independent Contractor (if required by the REMIC Provisions for the REO Property to remain classified as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code) for the operation and management of any Administered REO Property; provided , provided, that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's ’s length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C17)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it such alternative is commercially reasonablefeasible and would result in a greater net recovery on a present value basis than earning income subject to an REO Tax) acquire such Mortgaged Property as REO Property and so lease or operate manage such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no such method of operation is commercially reasonable means exists to operate such property as feasible and would result in a greater net recovery on a present value basis than leasing or other method of operating the REO Property without the Trust Fund incurring or possibly incurring that would not incur an REO Tax on income from such propertyTax, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders ) or (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)B) the net after-tax REO Revenues received with respect to manage such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does would not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
an REO Tax on the income derived from such property. All of the REMIC Administrator's expenses (iii) including any ground rents in respect of such REO Property; and
(iv) all costs fees and expenses necessary of counsel or other experts reasonably retained by it) incurred pursuant to maintain, lease, sell, protect, manage, operate and restore such REO Property. To this section shall be reimbursed to it from the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, Trust Fund in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedingsSection 10.01(e).
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Union Commercial Mortgage Pass THR Cer Ser 2001-C3)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO PropertyProperty (other than performing construction work thereon or holding such REO Property for sale to customers in the ordinary course of a trade or business);
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, exercised in accordance with the Servicing Standard, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or otherwise operate such REO Property or, in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any REO Tax and will maximize the net recovery from the REO Property to the Certificateholders then the Special Servicer may so operate the REO Property; or;
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, then the Special Servicer shall deliver to the Tax AdministratorTrustee and to the Series 2006-C2 Directing Certificateholder, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, income and good faith estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the Trustee shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Trustee shall (to the maximum extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax AdministratorTrustee, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. Subject to Section 3.17(b), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on in accordance with the Servicing Standard and, further, based on the good faith and reasonable judgment of Standard. Neither the Special Servicer as nor the Trustee shall be liable to which means would be the Certificateholders, the Trust, the other parties hereto, any affected B Loan Holder or each other for errors in judgment made in good faith in the best interest exercise of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with their discretion while performing their respective duties responsibilities under this Section 3.17(a), both ) with respect to any REO Property. Nothing in this Section 3.17(a) is intended to prevent the Special Servicer sale of any REO Property pursuant to the terms and subject to the Tax Administrator may consult with counsel and tax accountants, the reasonable cost conditions of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special ServicerSection 3.18.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect protect, operate and operate lease such REO Property for the benefit of the Certificateholders (andor, in the case of any Administered if such REO Property related relates to a Serviced Mortgage Loan Combination, for the benefit of the Certificateholders and the related Serviced Non-Trust Mortgage B Loan Noteholder(s)Holder) solely for the purpose of its prompt disposition and sale in accordance with Section 3.18, in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any either REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result Code, in an Adverse REMIC Event with respect to either REMIC Pool or in an Adverse Grantor Trust EventEvent with respect to Grantor Trust V-1. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith with the administration of any REO Property as are consistent with the Servicing Standard andStandard, and consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, leasing, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if applicable; and
(iv) all other costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in with respect of to any Administered REO Property are insufficient for the purposes set forth in contemplated by the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special ServicerServicer in accordance with Section 3.03(c), make a Servicing Advances in Advance of such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standardits reasonable judgment, that such payment would advances would, if made, be a Nonrecoverable AdvanceServicing Advances (in accordance with and subject to the third to the last paragraph of Section 3.03(c)); provided, however, that the Master Servicer may in its sole discretion make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) permit the Trust Fund to enter into, renew or extend any New Lease with respect to such Administered any REO Property, if the New Lease, Lease by its terms would will give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered any REO Property, other than the repair or maintenance thereof or the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) except as provided for in Section 3.17(a)(i) and (a)(ii) above, Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered Operate, any REO Property on any date more than 90 days after the related REO Acquisitionits Acquisition Date; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable Servicer as a Servicing AdvanceAdvance unless non-recoverable) to the effect that such action would will not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Poolthe Trust Fund, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. Except as limited above in this Section 3.17 and by Section 3.17(d), the Special Servicer shall be permitted to cause the Trust Fund to earn "net income from foreclosure property," subject to the Servicing Standard.
(d) The Except as permitted by Section 3.17(a), Special Servicer may shall contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered an REO Property that relates related to a Serviced Loan Combination, of the related Serviced Non-Trust Mortgage Junior Loan Noteholder(sHolder(s)) shall be reasonable and customary in consideration light of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) To the extent the costs of any contract with any Independent Contractor for the operation and management of any REO Property are greater that the revenues available from such property, such excess costs shall be deemed covered by, and be reimbursable to, the Master Servicer as a Sub-Servicing Agreement for purposes of Section 3.22Advance.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Credit Suisse Commercial Mortgage Trust Series 2006-C2)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than with respect to a Mortgaged Property that secures an Outside Serviced Loan Combination)Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property as REO Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer (other than the holding of such Mortgaged Property for sale to customers in the ordinary course of trade or business or the performance of any construction work thereon) as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property Mortgaged Property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting positionposition or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on income derived from such property. The Special Servicer's decision as to how each Administered REO Property Property, shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, or in the case of any Administered a Loan Group REO Property related to a Serviced Property, in the best interest of the Certificateholders and the applicable Companion Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), Noteholders (as a collective whole, )) by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and adversely affecting the Special Servicer's ability to promptly sell such property the REO Property in accordance with this Agreement and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Neither the Special Servicer nor the Tax Administrator shall be liable to the Certificateholders, the Trust Fund, the other parties hereto or each other for a fair priceerrors in judgment made in good faith in the reasonable exercise of their discretion while performing their duties under this Section 3.18 except as provided in Section 6.03. In connection with performing their respective duties under this Section 3.17(a3.18(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property Property, is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, or in the case of any Administered a Loan Group REO Property related to Property, in the best interest of the Certificateholders and the applicable Companion Loan Noteholders (as a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(scollective whole)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a3.18(a), either result in the receipt by any either REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related applicable REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related applicable REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer or Special Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that if such nonrecoverability determination is made, the Master Servicer may make any such Servicing Advance without regard to recoverability payment out of the Custodial Account as an Additional Trust Fund Expense if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered any REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered any REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Except as provided in Section 3.18(a)(i), Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered any Mortgaged Property as REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance, or, if such Servicing Advance would be a Nonrecoverable Advance, shall be paid out of the Custodial Account as an Additional Trust Fund Expense) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Poolthe Lower-Tier REMIC, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may may, and if so required to prevent the REO Property from failing to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code, shall contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of or with respect to any Administered Loan Group REO Property that relates such fees shall be netted out of collections on such Loan Group REO Property prior to a Serviced Loan Combination, their being remitted to the related Serviced Non-Trust Mortgage Loan Noteholder(s)Special Servicer) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a3.18(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b3.18(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Treasury Regulations Section 1.856-4(b)(5) of the Treasury regulations or any successor provision)), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.18(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 3.17 and this Section 3.17 3.18 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d3.18(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.223.23.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than with respect to a Mortgaged Property that secures an Outside Serviced Loan Combination)Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property as REO Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer (other than the holding of such Mortgaged Property for sale to customers in the ordinary course of trade or business or the performance of any construction work thereon) as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property Mortgaged Property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting positionposition or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on income derived from such property. The Special Servicer's decision as to how each Administered REO Property Property, shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, or in the case of any Administered a Loan Group REO Property related to a Serviced Property, in the best interest of the Certificateholders and the applicable Companion Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), Noteholders (as a collective whole, )) by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b3.18(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and adversely affecting the Special Servicer's ability to promptly sell such property the REO Property in accordance with this Agreement and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Neither the Special Servicer nor the Tax Administrator shall be liable to the Certificateholders, the Trust Fund, the other parties hereto or each other for a fair priceerrors in judgment made in good faith in the reasonable exercise of their discretion while performing their duties under this Section 3.18 except as provided in Section 6.03. In connection with performing their respective duties under this Section 3.17(a3.18(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Greenwich Capital Commercial Funding Corp)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None none of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It it is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially reasonable, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based in either case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing maximize (to the extent commercially reasonable and consistent with Section 3.17(b)reasonable) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the extent consistent with the foregoing, shall be in accordance with the Servicing Standard. Both the Special Servicer's ability Servicer and the REMIC Administrator may, at the expense of the Trust Fund payable pursuant to promptly sell such property for a fair price. In connection Section 3.05(a)(xiii) consult with performing their respective duties counsel with respect to the determinations required under this Section 3.17(a), both . Neither the Special Servicer and nor the Tax REMIC Administrator may consult with counsel and tax accountantsshall be liable to the Certificateholders, the reasonable cost Trust Fund, the Trustee, the Master Servicer or each other for errors in judgment made in good faith in the exercise of which consultation shall be covered by, their discretion while performing their respective responsibilities under this Section 3.17(a). Nothing in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage Loan pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 3.18.
(b) If Subject to Section 3.17(a)(iii), if title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) not cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) , except as contemplated by Section 3.17(a), either or result in the receipt by any REMIC Pool I, REMIC II or REMIC III of any "income from non-permitted nonpermitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) (iv) above with respect to such REO Property, the Master Servicer shall, at pursuant to the direction of the Special Servicerprocedures and limitations set forth in Sections 3.01 and 3.03, make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officers' Certificate delivered to the Trustee and the Master Servicer) the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered the REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations Regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the applicable Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the applicable Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO TaxTAX"), then such Mortgaged Property may be Directly Operated by the applicable Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an -155- Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the applicable Special Servicer may (provided PROVIDED that in the good faith and reasonable judgment of the applicable Special Servicer, exercised in accordance with the Servicing Standard, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or otherwise operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, then the applicable Special Servicer shall deliver to the Tax AdministratorTrustee and the Controlling Class Representative, in writing, a proposed plan (the "Proposed PlanPROPOSED PLAN") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, income and good faith estimates of the amount of income from each such source. Upon request Within a reasonable period of the Special Servicertime after receipt of such plan, the Tax Administrator Trustee shall consult with the applicable Special Servicer and shall advise the applicable Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Trustee shall (to the maximum extent reasonably possible) advise the applicable Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax AdministratorTrustee, the applicable Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. Subject to SECTION 3.17(b), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The applicable Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on in accordance with the Servicing Standard andStandard. Neither the applicable Special Servicer nor the Trustee shall be liable to the Certificateholders, furtherthe Trust, based on the other parties hereto or each other for errors in judgment made in good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest exercise of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)their discretion while performing their respective responsibilities under this SECTION 3.17(a) the net after-tax REO Revenues received with respect to such property without materially impairing any REO Property. Nothing in this SECTION 3.17(a) is intended to prevent the Special Servicer's ability sale of any REO Property pursuant to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer terms and subject to the Tax Administrator may consult with counsel and tax accountants, the reasonable cost conditions of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special ServicerSECTION 3.18.
(b) If title to any Administered REO Property is acquired, the applicable Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in accordance with SECTION 3.18, in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section SECTION 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result Code, in an Adverse REMIC Event with respect to any REMIC Pool or in an Adverse Grantor Trust EventEvent with respect to either Grantor Trust Pool. Except as contemplated by SECTION 3.17(a), the applicable Special Servicer shall not enter into any lease, contract or other agreement with respect to any REO Property that causes the Trust to receive, and (unless required to do so under any lease, contract or agreement to which the applicable Special Servicer or the Trust may become a party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to the related Mortgage Loan) shall not, with respect to any REO Property, cause or allow the Trust to receive, any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the applicable Special Servicer shall -156- have full power and authority to do any and all things in connection therewith with the administration of any REO Property, as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related its REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related applicable Special Servicer's REO Account in with respect of to any Administered REO Property are insufficient for the purposes set forth in contemplated by the preceding sentence with respect to such REO Property, the applicable Master Servicer shall, at the direction of the applicable Special Servicer, make a Servicing Advances in Advance of such amounts as are necessary for such purposes unless the such Master Servicer or Special Servicer determines, in accordance with the Servicing Standardits reasonable judgment, that such payment would advances would, if made, be a Nonrecoverable AdvanceServicing Advances; providedPROVIDED, howeverHOWEVER, that the such Master Servicer may in its sole discretion make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The applicable Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided , PROVIDED that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Trust) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section SECTION 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the applicable Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(dSECTION 3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the applicable Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the applicable Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The . Each Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the such Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) To the extent the costs of any contract with any Independent Contractor for the operation and management of any REO Property are greater that the revenues available from such property, such excess costs shall be deemed covered by, and be reimbursable as, a Sub-Servicing Agreement for purposes of Section 3.22Advance.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax AdministratorREMIC Administrator and the Controlling Class Representative, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially reasonable, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer and the Controlling Class Representative of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent reasonably possible) advise the Special Servicer and the Controlling Class Representative of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective -92- Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax REMIC Administrator's tax reporting positionexpenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(f). The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based and in any case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers and asset managers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective Mortgaged Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax REMIC Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a)(xiii), consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If Subject to Section 3.17(a)(iii), if title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) not cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool I, REMIC II or REMIC III of any "income from non-permitted nonpermitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) - (iv) above with respect to such REO Property, the Master Servicer shall, at pursuant to the direction of the Special Servicer, procedures and limitation set forth in
Section 3.01 make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officers' Certificate delivered to the Trustee and the Master Servicer) the Master Servicer would not make such advances if the Master Servicer owned such REO Property or the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Special Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered the REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations Regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Mortgage Pass Through Cert Series 1998-C3)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the maximum extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income from such REO Property. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) the net after-tax REO Revenues received by the Trust with respect to such property without materially impairing its marketability and, to the extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers and asset managers operating acquired mortgaged property comparable to such REO Property. Both the Special Servicer's ability Servicer and the REMIC Administrator may consult with counsel knowledgeable in such matters at (to promptly sell such property for a fair price. In the extent reasonable) the expense of the Trust in connection with performing their respective duties determinations required under this Section 3.17(a), both . Neither the Special Servicer and nor the Tax REMIC Administrator may consult with counsel and tax accountantsshall be liable to the Certificateholders, the Trust, the other parties hereto or each other for errors in judgment made in good faith in the reasonable cost exercise of which consultation shall be covered bytheir discretion while performing their respective responsibilities under this Section 3.17(a) or, to the extent it relates to federal income tax consequences for the Trust, Section 3.17(b) below. Nothing in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 3.18.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any of REMIC Pool I, REMIC II or REMIC III of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event in respect of any such REMIC. Except as provided in Section 3.17(a), the Special Servicer shall not enter into any lease, contract or an Adverse Grantor other agreement that causes REMIC I to receive, and (unless required to do so under any lease, contract or agreement to which the Special Servicer or the Trust Eventmay become a party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to a Mortgage Loan) shall not cause or allow REMIC I to receive any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Special Servicer shall direct the Master Servicer shall, at to make (and the direction of the Special Servicer, make Master Servicer shall so make) Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced in the manner contemplated by Section 3.11(g)) the Special Servicer or the Master Servicer determines, in accordance with the Servicing Standardits reasonable, good faith judgment, that such payment would be a Nonrecoverable Servicing Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may (and, except as otherwise permitted by Section 3.17(a), shall if it would avoid an Adverse REMIC Event) contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Trust) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall requirebe consistent with the provisions of Treasury Regulation ss.1.856-4(b)(5) and, or to the extent consistent therewith, shall be administered to require, require that the Independent Contractor, in a timely manner, (A) to the extent of available revenue from the REO Property, pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Mortgage Capital Funding Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None none of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It it is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially reasonable, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based in either case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Both the Special Servicer's ability Servicer and the REMIC Administrator may, at the expense of the Trust Fund payable pursuant to promptly sell such property for a fair price. In connection Section 3.05(a)(xiii) consult with performing their respective duties counsel with respect to the determinations required under this Section 3.17(a), both . Neither the Special Servicer and nor the Tax REMIC Administrator may consult with counsel and tax accountantsshall be liable to the Certificateholders, the reasonable cost Trust Fund, the Trustee, the Master Servicer or each other for errors in judgment made in good faith in the exercise of which consultation shall be covered by, their discretion while performing their respective responsibilities under this Section 3.17(a). Nothing in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage Loan pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 3.18.
(b) If Subject to Section 3.17(a)(iii), if title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) not cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) , except as contemplated by Section 3.17(a), either or result in the receipt by any REMIC Pool I, REMIC II or REMIC III of any "income from non-permitted nonpermitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i)-(iv) above with respect to such REO Property, the Master Servicer shall, at pursuant to the direction of the Special Servicerprocedures and limitations set forth in Section 3.01, make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officers' Certificate delivered to the Trustee and the Master Servicer) the Master Servicer would not make such advances if the Master Servicer owned such REO Property or the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered the REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations Regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a the One Lincoln Street Mortgaged Property that secures an Outside Serviced Loan Combinationor the World Apparel Center Mortgaged Property), the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. In addition, if the Guam Multifamily Mortgaged Property becomes an REO Property, then the Master Servicer or the Special Servicer may obtain the advice of counsel and/or tax accountants in accordance with the last sentence of this paragraph in order to determine what taxes (including withholding taxes) may be payable under the laws of Guam, and the Master Servicer and the Special Servicer may rely on such advice or opinion of counsel. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Noteholder), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator (or, in connection with its duties under this Agreement, the Master Servicer) may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Master Servicer or the Special Servicer, as applicable.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Noteholder) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC PoolI, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Noteholder) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(fe) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered One Lincoln Street REO Property or any World Apparel Center REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2004-C7)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Mortgaged Property that secures an Outside Serviced Loan CombinationProperty), the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall -------------- include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC PoolI, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(fe) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Structured Asset Sec Corp Ii Lb-Ubs Comm Mort Trust 2004-C4)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it such alternative is commercially reasonablefeasible and would result in a greater net recovery on a present value basis than earning income subject to an REO Tax) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no such method of operation is commercially reasonable means exists to operate such property as feasible and would result in a greater net recovery on a present value basis than leasing or other method of operating the REO Property without the Trust Fund incurring or possibly incurring that would not incur an REO Tax on income from such propertyTax, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax REMIC Administrator's tax reporting positionexpenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(f). The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based and in any case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable feasible and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers and asset managers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective Mortgaged Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax REMIC Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a)(xiii) consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) not cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool I of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, subject to the second paragraph of Section 3.03(c), shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officers' Certificate delivered to the Trustee) the Master Servicer would not make such advances if the Master Servicer owned such REO Property or the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings. A copy of any Officers' Certificate prepared in accordance with this Section shall be delivered by the Master Servicer to the Controlling Class Representative upon request (or, absent request, any such Officers' Certificates shall be delivered to the Controlling Class Representative on no less than a quarterly basis).
(c) Without limiting the generality of the foregoingUnless Section 3.17 (a)(i) applies, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered the REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations Regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Union Com Mor Sec Inc Com Mor Pass THR Cer Ser 2001-C1)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, exercised in accordance with the Servicing Standard, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or otherwise operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, income and good faith estimates of the amount of income from each such source. Upon request Within a reasonable period of the Special Servicertime after receipt of such plan, the Tax Administrator shall consult with the Special Servicer and shall advise the Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Tax Administrator shall (to the maximum extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on in accordance with the Servicing Standard and, further, based on the good faith and reasonable judgment of Standard. Neither the Special Servicer as nor the REMIC Administrator shall be liable to which means would be the Certificateholders, the Trust, the other parties hereto or each other for errors in judgment made in good faith in the best interest exercise of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with their discretion while performing their respective duties responsibilities under this Section 3.17(a), both . Nothing in this Section 3.17(a) is intended to prevent the Special Servicer sale of a Defaulted Mortgage Loan or REO Property pursuant to the terms and subject to the Tax Administrator may consult with counsel and tax accountants, the reasonable cost conditions of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special ServicerSection 3.18.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event with respect to any REMIC Pool. Except as contemplated by Section 3.17(a), the Special Servicer shall not enter into any lease, contract or an Adverse Grantor other agreement that causes the Trust Eventto receive, and (unless required to do so under any lease, contract or agreement to which the Special Servicer or the Trust may become a party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to a Mortgage Loan) shall not cause or allow the Trust to receive, any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in contemplated by the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in advance such amounts as are necessary for such purposes unless the Master Servicer or the Special Servicer determines, in accordance with the Servicing Standardits reasonable, good faith judgment, that such payment would advances would, if made, be a Nonrecoverable AdvanceServicing Advances; provided, however, that the Master Servicer may in its sole discretion make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Trust) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) To the extent the costs of any contract with any Independent Contractor for the operation and management of any REO Property are greater that the revenues available from such property, such excess costs shall be deemed covered by, and be reimbursable as, a Sub-Servicing Agreement for purposes of Section 3.22Advance.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Greenwich Capital Commercial Funding Corp)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a the GIC Office Mortgaged Property that secures an Outside Serviced Loan CombinationProperties), the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ REO Property, Somerset Collection REO Property, ▇▇▇▇▇▇▇▇ Place REO Property related to a Serviced Loan Combinationor Cumberland Place REO Property, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ REO Property, Somerset Collection REO Property, ▇▇▇▇▇▇▇▇ Place REO Property related to a Serviced Loan Combinationor Cumberland Place REO Property, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC PoolI, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ REO Property, Somerset Collection REO Property, ▇▇▇▇▇▇▇▇ Place REO Property that relates to a Serviced Loan Combinationor Cumberland Place REO Property, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(fe) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered GIC Office REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Structured Asset Sec Corp Lb-Ubs Comm Mort Trust 2004-C2)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review review, in its good faith and reasonable judgment, that:
(i) None none of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property Mortgaged Property that would be subject to an REO Tax, but that a lease of such property Mortgaged Property to another party to operate such propertyMortgaged Property, or the performance of some services by an Independent Contractor with respect to such propertyMortgaged Property, or another method of operating such property Mortgaged Property would not result in income subject to an REO Tax, then the Special Servicer may (provided that that, in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property Mortgaged Property as REO Property could result in income subject to an REO Tax and, in the good faith and reasonable judgment of the Special Servicer, that no commercially reasonable feasible means exists to operate such property Mortgaged Property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such propertyMortgaged Property, then the Special Servicer shall deliver to the Tax AdministratorTrustee, in writing, a proposed plan (the "Proposed Plan") to manage such property Mortgaged Property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the Trustee shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Trustee shall (to the maximum extent possible) advise the Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax AdministratorTrustee, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such REO Property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such REO Property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall in any event be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer Servicer, consistent with the Servicing Standard, as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) maximize the net after-tax REO Revenues Income received by the Trust with respect to such property REO Property without materially impairing and adversely affecting the Special Servicer's ability to promptly sell such property for a fair priceREO Property in accordance with this Agreement. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax Administrator Trustee may consult with counsel and tax accountantsknowledgeable in such matters at the expense of the Trust Fund in connection with determinations required under this Section 8.20(a). Neither the Special Servicer nor the Trustee shall be liable to the Certificateholders, the Trust, the other parties hereto or each other for errors in judgment made in good faith in the reasonable cost exercise of which consultation shall be covered bytheir discretion while performing their respective responsibilities under this Section 8.20(a) or, to the extent it relates to federal income tax consequences for the Trust, Section 8.20(b) below. Nothing in this Section 8.20(a) is intended to prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 8.31.
(b) If title to any Administered REO Property is acquired, the Special Servicer or an Independent Contractor chosen by the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool the Trust of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event Event. Except as otherwise expressly provided herein, the Special Servicer shall not enter into any lease, contract or an Adverse Grantor other agreement that causes REMIC I to receive, and (unless required to do so under any lease, contact or agreement to which the Special Servicer or the Trust Eventmay become a party or a successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to a Mortgage Loan) shall not cause or allow REMIC I to receive, any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent in the best interests of and for the benefit of the Certificateholders in accordance with the Servicing Standard (as determined by the Special Servicer in its good faith and reasonable judgment) and, consistent therewith, shall direct the Master Servicer to withdraw from the related REO Collection Account, to the extent of amounts on deposit therein with respect to any Administered each REO Property, and deliver to the Special Servicer (for appropriate application), funds necessary for the proper operation, management, management and maintenance and disposition of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore maintain such REO Property. To the extent that amounts on deposit in the related REO Collection Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) - (iv) above with respect to such REO Property, the 133 Master Servicer shall, (at the direction of the Special Servicer, make Servicing Advances in ) shall advance from its own funds such amounts amount as are is necessary for such purposes unless the Master Servicer determinessuch advances would, in accordance with the Servicing Standardif made, that such payment would be a constitute Nonrecoverable AdvanceAdvances; provided, however, that the Master Servicer may (at the direction of the Special Servicer) shall make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedingsproceedings and such advance shall be deemed to constitute a recoverable Servicing Advance.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the The terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses an expense of the Trust Fund andTrust, in the case payable out of any Administered related REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Income) shall be reasonable and customary in consideration light of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, Contractor (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in subsection (b) of this Section 3.17(b) above, 8.20 and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues REO Income collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d8.20(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable feasible means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent 119 reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax REMIC Administrator's tax reporting positionexpenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(f). The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based and in any case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable feasible and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers and asset managers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective Mortgaged Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax REMIC Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a)(xiii) consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) not cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool I, REMIC II, REMIC III or REMIC IV of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;; 120
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, subject to the second paragraph of Section 3.03(c), shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officers' Certificate delivered to the Trustee and the Master Servicer) the Master Servicer would not make such advances if the Master Servicer owned such REO Property or the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered the REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations Regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be 121 deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than with respect to a Mortgaged Property that secures an Outside Serviced Loan Combination)Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property as REO Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer (other than the holding of such Mortgaged Property for sale to customers in the ordinary course of trade or business or the performance of any construction work thereon) as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property Mortgaged Property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting positionposition or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on income derived from such property. The Special Servicer's decision as to how each Administered REO Property Property, shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b3.18(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and adversely affecting the Special Servicer's ability to promptly sell such property the REO Property in accordance with this Agreement and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. [Neither the Special Servicer nor the Tax Administrator shall be liable to the Certificateholders, the Trust Fund, the other parties hereto or each other for a fair price. errors in judgment made in good faith in the reasonable exercise of their discretion while performing their duties under this Section 3.18 except as provided in Section 6.03.] In connection with performing their respective duties under this Section 3.17(a3.18(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property Property, is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a3.18(a), either result in the receipt by any either REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related applicable REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related applicable REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, shall make Servicing Advances in such amounts as are necessary for such purposes unless the Master Special Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Special Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings. The Special Servicer shall notify the Master Servicer if it shall have made any such Servicing Advance within the previous 30-day period.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered any REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered any REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Except as provided in Section 3.18(a)(i), Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered any Mortgaged Property as REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance, [or, if such Servicing Advance would be a Nonrecoverable Advance, shall be paid out of the Custodial Account as an Additional Trust Fund Expense]) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Poolthe Lower-Tier REMIC, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may may, and if so required to prevent the REO Property from failing to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code, shall contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a3.18(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b3.18(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Treasury Regulations Section 1.856-4(b)(5) of the Treasury regulations or any successor provision)), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.18(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 3.17 and this Section 3.17 3.18 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d3.18(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.223.23.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (CWCapital Commercial Funding Corp.)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable feasible means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax AdministratorTrustee, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the Trustee shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax AdministratorTrustee's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Trustee shall (to the maximum extent possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax AdministratorTrustee, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based in either case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers and asset managers operating acquired mortgaged property comparable to the respective Mortgaged Property. Both the Special Servicer's ability to promptly sell such property for a fair price. In Servicer and the Trustee may consult with counsel at the expense of the Trust Fund (payable out of general collections on the Mortgage Pool on deposit in the Certificate Account) in connection with performing their respective duties determinations required under this Section 3.17(a), both . Neither the Special Servicer and nor the Tax Administrator may consult with counsel and tax accountantsTrustee shall be liable to the Certificateholders, the reasonable cost Trust Fund, the other parties hereto or each other for errors in judgment made in good faith in the exercise of which consultation shall be covered by, their discretion while performing their respective responsibilities under this Section 3.17(a). Nothing in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 3.18.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by provided in Section 3.17(a), either result in (i) the receipt by any REMIC Pool I, REMIC II or REMIC III of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in (ii) an Adverse REMIC Event in respect of any such REMIC. Except as provided in Section 3.17(a), the Special Servicer shall not enter into any lease, contract or an Adverse Grantor other agreement that causes REMIC I to receive, and (unless required to do so under any lease, contract or agreement to which the Special Servicer or the Trust EventFund may become a party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to a Mortgage Loan) shall not cause or allow REMIC I to receive, any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoingforegoing and Section 3.27(a), however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate operate, restore and restore dispose of such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) - (iv) above with respect to such REO Property, the Master Special Servicer shall, at the direction of the shall make Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officer's Certificate delivered to the Master Trustee) the Special Servicer would not make such advances if the Special Servicer owned such REO Property or the Special Servicer determines, in accordance with the Servicing Standardits reasonable and good faith judgment, that such payment would would, if made, be a Nonrecoverable Servicing Advance; provided, however, that the Master Special Servicer may make any such Special Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting If consistent with the generality of the foregoingdeterminations made pursuant to Section 3.17(a), the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receiptas soon as practicable, but in no event later than 20 days following the receipt thereof by such Independent Contractor;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Salomon Brothers Mortgage Securities Vii Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable feasible means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver give written notice to the Tax Administrator, in writing, REMIC Administrator summarizing a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan notice shall include potential sources of income, and, and to the extent reasonably possiblefeasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such notice, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent feasible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based in either case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers and asset managers operating acquired mortgaged property comparable to the respective Mortgaged Property. Both the Special Servicer's ability to promptly sell such property for a fair price. In Servicer and the REMIC Administrator may consult with counsel at the expense of the Trust Fund in connection with performing their respective duties determinations required under this Section 3.17(a), both . Neither the Special Servicer and nor the Tax REMIC Administrator may consult with counsel and tax accountantsshall be liable to the Certificateholders, the reasonable cost Trust Fund, the Trustee, the Master Servicer or each other for errors in judgment made in good faith in the exercise of which consultation shall be covered by, their discretion while performing their respective responsibilities under this Section 3.17(a). Nothing in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage Loan pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 3.18.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool I or REMIC II of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event Event. Except as provided in Section 3.17(a), the Special Servicer shall not enter into any lease, contract or an Adverse Grantor other agreement that causes REMIC I to receive, and (unless required to do so under any lease, contract or agreement to which the Special Servicer or the Trust EventFund may become a party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to a Mortgage Loan) shall not cause or allow REMIC I to receive, any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, management and maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) - (iv) above with respect to such REO Property, the Master Special Servicer shall, at the direction of the Special Servicer, shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officers' Certificate delivered to the Trustee and the Master Servicer) the Special Servicer would not make such advances if the Special Servicer owned such REO Property or the Special Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Special Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under subject to Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)Defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review review, in its good faith and reasonable judgment, that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and, in the good faith and reasonable judgment of the Special Servicer, that no commercially reasonable feasible means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax AdministratorTrustee, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the Trustee shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax AdministratorTrust Fund's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Trustee shall (to the maximum extent possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax AdministratorTrustee, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall in any event be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) maximize the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and adversely affecting the Special Servicer's ability to promptly sell such property for a fair priceREO Property in accordance with this Agreement and, to the extent consistent with the foregoing, in accordance with the same manner that the Special Servicer would operate and manage such REO Property if it were owned by the Special Servicer. In Both the Special Servicer and the Trustee may consult with counsel knowledgeable in such matters at the expense of the Trust Fund in connection with performing their respective duties determinations required under this Section 3.17(a), both . Neither the Special Servicer and nor the Tax Administrator may consult with counsel and tax accountantsTrustee shall be liable to the Certificateholders, the Trust Fund, the other parties hereto or each other for errors in judgment made in good faith in the reasonable cost exercise of which consultation shall be covered bytheir discretion while performing their respective responsibilities under this Section 3.17(a) or, to the extent it relates to federal income tax consequences for the Trust Fund, Section 3.17(b) below. Nothing in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 3.18.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated permitted by Section 3.17(a), either result in the receipt by any REMIC Pool the Trust Fund of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse any "net income from foreclosure property" which is subject to taxation under the REMIC Event or an Adverse Grantor Trust EventProvisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with in the Servicing Standard best interests of and for the benefit of the Certificateholders (as determined by the Special Servicer in its good faith and reasonable judgment) and, consistent therewith, shall direct the Master Servicer to withdraw from the related REO Certificate Account, to the extent of amounts on deposit therein with respect to any Administered each REO Property, and deliver to the Special Servicer (for appropriate application), funds necessary for the proper operation, management, management and maintenance and disposition of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore maintain such REO Property. To the extent that amounts on deposit in the related REO Certificate Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) - (iv) above with respect to such REO Property, the Master Special Servicer shall, at the direction of the Special Servicer, make Servicing Advances in shall advance from its own funds such amounts amount as are is necessary for such purposes unless (as evidenced by an Officer's Certificate delivered to the Master Trustee) the Special Servicer determineswould not make such advances if the Special Servicer owned such REO Property or if such advances would, in accordance with the if made, constitute Nonrecoverable Servicing Standard, that such payment would be a Nonrecoverable AdvanceAdvances; provided, however, that the Master Special Servicer may shall make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedingsproceedings and such advance will be deemed to constitute a recoverable Servicing Advance.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses an expense of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration light of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, Contractor (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(bsubsection (b) abovehereof, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the applicable Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the applicable Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the applicable Special Servicer as REO PropertyProperty (other than the performance of activities for which an Independent Contractor is required);
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the such Special Servicer may (provided that in the good faith and reasonable judgment of the such Special Servicer, exercised in accordance with the Servicing Standard, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or otherwise operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the such Special Servicer shall deliver to the Tax AdministratorTrustee and the Controlling Class Representative, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, income and good faith estimates of the amount of income from each such source. Upon request Within a reasonable period of the Special Servicertime after receipt of such plan, the Tax Administrator Trustee shall consult with such Special Servicer and shall advise the such Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Trustee shall (to the maximum extent reasonably possible) advise such Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax AdministratorTrustee, the such Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. Subject to Section 3.17(b), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The applicable Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on in accordance with the Servicing Standard andStandard. Neither the Special Servicers nor the Trustee shall be liable to the Certificateholders, furtherthe Trust, based on the other parties hereto or each other for errors in judgment made in good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest exercise of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with their discretion while performing their respective duties responsibilities under this Section 3.17(a), both ) with respect to any REO Property. Nothing in this Section 3.17(a) is intended to prevent the Special Servicer sale of any REO Property pursuant to the terms and subject to the Tax Administrator may consult with counsel and tax accountants, the reasonable cost conditions of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special ServicerSection 3.18.
(b) If title to any Administered REO Property (other than the Great Lakes Crossing Mortgaged Property) is acquired, the applicable Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in and for the case benefit of any Administered the holder of the B Loan Holder and the Washington Center Junior Holders if such REO Property is related to a Serviced an A/B Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Pair) solely for the purpose of its prompt disposition and sale in accordance with Section 3.18, in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any the Upper-Tier REMIC, Lower-Tier REMIC Pool or 622 Third Avenue Loan REMIC of any "income from non-permitted assets" within the meaning ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ing of Section 860F(a)(2)(B) of the Code or result Code, in an Adverse REMIC Event with respect to the Upper-Tier REMIC, the Lower-Tier REMIC or the 622 Third Avenue Loan REMIC or in an Adverse Grantor Trust EventEvent with ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ Grantor Trust. Except as contemplated by Section 3.17(a), the applicable Special Servicer shall not enter into any lease, contract or other agreement with respect to any REO Property that causes the Trust to receive, and (unless required to do so under any lease, contract or agreement to which the applicable Special Servicer or the Trust may become a party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to the related Mortgage Loan) shall not, with respect to any REO Property, cause or allow the Trust to receive, any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the applicable Special Servicer shall have full power and authority to do any and all things in connection therewith with the administration of any REO Property, as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related its REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related applicable Special Servicer's REO Account in with respect of to any Administered REO Property are insufficient for the purposes set forth in contemplated by the preceding sentence with respect to such REO Property, the applicable Master Servicer shall, at the direction of the applicable Special ServicerServicer pursuant to Section 3.19(b), make a Servicing Advances in Advance of such amounts as are necessary for such purposes unless the such Master Servicer or Special Servicer determines, in accordance with the Servicing Standardits reasonable judgment, that such payment would advances would, if made, be a Nonrecoverable AdvanceServicing Advances; provided, however, that the such Master Servicer may in its sole discretion make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings. Notwithstanding the foregoing, the 622 Third Avenue B Loan Holder or the Washington Center Junior Holder▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇uired to reimburse the Trust Fund or any other Person for a payment of any REMIC taxes or Advances therefor or interest accrued thereon at the Advance Rate or for deficits in other items of disbursement or income resulting from the use of funds for payment of REMIC taxes or for any REMIC related opinions or REMIC administration fees.
(c) Without limiting The applicable Special Servicer may, and if required to maintain the generality status of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of pursuant to Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC PoolCode, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may shall contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Trust) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the such Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the such Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the such Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The . Each Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the such Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) To the extent the costs of any contract with any Independent Contractor for the operation and management of any REO Property are greater that the revenues available from such property, such excess costs shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything covered by, and be reimbursable to the contraryapplicable Master Servicer as, this Section 3.17 shall not apply to any Outside Administered REO Propertya Servicing Advance.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Credit Suisse First Boston Mor Sec Corp Com Cer Ser 2003-C3)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a the Two Penn Plaza Mortgaged Property that secures an Outside Serviced Loan CombinationProperty), the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2004-C6)
Management of REO Property. (a) Prior The Special Servicer, on behalf of the Trust Fund, shall sell any REO Property not later then the end of the third calendar year following the year of acquisition of such REO Property for purposes of Section 860G(a)(8) of the Code, unless (i) the Internal Revenue Service grants an extension of time to the acquisition by it of title to a Mortgaged Property sell such REO property or (other than a Mortgaged Property that secures an Outside Serviced Loan Combination), ii) the Special Servicer obtains for the Trustee (which shall review the operation of such Mortgaged Property and determine the nature be an expense of the income Trust) an Opinion of Counsel, addressed to the Trustee, and the Master Servicer, to the effect that would be derived from such property if it were acquired the holding by the Trust Fund. If the Special Servicer determines from Fund of such review that:
(i) None of the income from Directly Operating such Mortgaged REO Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject subsequent to the tax imposed third anniversary of such acquisition will not result in the imposition of taxes on "prohibited transactions" under of the Trust Fund as defined in Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without cause the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") fail to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto qualify as a result of the Tax Administrator's tax reporting positionREMIC at any time that any Certificates are outstanding. The Special Servicer's decision as Subject to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(sSection 6.04(e)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such each REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that which does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool the Trust Fund of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse any "net income from foreclosure property" which is subject to taxation under the REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedingsProvisions.
(cb) Without limiting the generality of the foregoingSubject to clause (e) below, the Special Servicer shall not, with respect to any Administered REO Property:
(i) permit the Trust Fund to enter into, renew or extend any New Lease new lease with respect to such Administered any REO Property, if the New Lease, new lease by its terms would will give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease new lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered any REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% ten percent of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, Person (other than an Independent Contractor, ) to Directly Operate such Administered Operate, any REO Property on any date more than 90 days after the related REO Acquisitionits Acquisition Date; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would will not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Poolthe Trust Fund, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(c) Any REO Property acquired by the Special Servicer hereunder shall be acquired in the name of the Trustee for the benefit of the Certificateholders or, provided the Special Servicer has received an Opinion of Counsel that the following will not affect adversely the status of REMIC I, REMIC II and REMIC III as REMICs, in the name of a single member limited liability company, the single member of which shall be the Trust Fund and the manager of which shall be the Special Servicer.
(d) The Special Servicer may contract with shall, prior to the acquisition of title to any Independent Contractor for Mortgaged Property, review the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees operations of such Independent Contractor (which shall be expenses property and determine the character of the income that the Trust Fund and, in would realize if the case of any Administered REO Property that relates Trust Fund acquired title to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Mortgaged Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the . The Special Servicer shall be obligated undertake this analysis with respect thereto a view to retaining the same extent status of the REO Property as if it alone were performing all duties and obligations in connection with foreclosure property under the operation and management of REMIC provisions while maximizing the net after-tax REO Proceeds received without materially adversely affecting the Special Servicer's ability to sell such Administered REO Property.
(e) If the Special Servicer determines, in its good faith and reasonable judgment, that if there are no other commercially feasible means of operating such Mortgaged Property as REO Property without the Trust Fund potentially or actually incurring an REO Tax it may Directly Operate the Mortgaged Property; provided, however, that the Special Servicer shall have prepared and delivered to the Trustee a written proposed plan regarding the plan of operations, the estimated income (and character thereof) derived therefrom, the estimated amount of taxes payable on such income and such other information as is necessary to make a reasoned judgment as to whether the REO Property will remain a foreclosure property and whether such plan is likely to maximize the net after tax REO income to the Trust Fund. Within a reasonable period of time after receipt of such proposed plan, the Trustee shall agree or disagree with the related tax position. The Special Servicer shall be entitled avoid subjecting the income from such Mortgaged Property to enter into any agreement with any Independent Contractor performing services for it related tax as either "net income from foreclosure property" or a "prohibited transaction" within the meaning of the REMIC Provisions (an "REO Tax") to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the maximum extent possible. Neither the Special Servicer by any such Independent Contractornor the Trustee shall be liable to the Certificateholders, and nothing in the Trust Fund or the other parties to this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to each other for errors in judgment made in good faith in the exercise of their discretion while performing their respective responsibilities under this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22Section.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Jp Morgan Chase Commercial Mortgage Securities Corp)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, exercised in accordance with the Servicing Standard, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or otherwise operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, income and good faith estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the maximum extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on in accordance with the Servicing Standard and, further, based on the good faith and reasonable judgment of Standard. Neither the Special Servicer as nor the REMIC Administrator shall be liable to which means would be the Certificateholders, the Trust, the other parties hereto or each other for errors in judgment made in good faith in the best interest exercise of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with their discretion while performing their respective duties responsibilities under this Section 3.17(a), both . Nothing in this Section 3.17(a) is intended to prevent the Special Servicer sale of a Defaulted Mortgage Loan or REO Property pursuant to the terms and subject to the Tax Administrator may consult with counsel and tax accountants, the reasonable cost conditions of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special ServicerSection 3.18.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event with respect to any REMIC Pool. Except as contemplated by Section 3.17(a), the Special Servicer shall not enter into any lease, contract or an Adverse Grantor other agreement that causes the Trust Eventto receive, and (unless required to do so under any lease, contract or agreement to which the Special Servicer or the Trust may become a party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to a Mortgage Loan) shall not cause or allow the Trust to receive, any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in contemplated by the preceding sentence with respect to such REO Property, the Master Special Servicer shallshall pay, at the direction of the Special Serviceras Servicing Advances, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Special Servicer determines, in accordance with the Servicing Standardits reasonable, good faith judgment, that such payment would advances would, if made, be a Nonrecoverable AdvanceServicing Advances; provided, however, that the Master Special Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Trust) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) To the extent the costs of any contract with any Independent Contractor for the operation and management of any REO Property are greater that the revenues available from such property, such excess costs shall be deemed covered by, and be reimbursable as, a Sub-Servicing Agreement for purposes of Section 3.22Advance.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (DLJ Commercial Mort Corp Comm Mort Pass THR Cer Ser 1998-Cg1)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable feasible means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.112
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)
Management of REO Property. (a) Prior to the acquisition by it of If title to a any Mortgaged Property is acquired in foreclosure or by deed in lieu of foreclosure (other than a Mortgaged Property that secures each, an Outside Serviced Loan Combination“REO Property”), the Special Servicer shall review the operation dispose of such Mortgaged REO Property and determine not later than the nature end of the income that would be derived from such property if it were acquired third taxable year after the year of its acquisition by the Trust Fundunless the Servicer has applied for and received a grant of extension from the Internal Revenue Service to the effect that, under the REMIC Provisions and any relevant proposed legislation and under applicable state law, the applicable Trust may hold REO Property for a longer period without adversely affecting the REMIC status of such REMIC or causing the imposition of a federal or state tax upon such REMIC and has notified the Master Servicer of such extension being granted by providing a copy of the application and the grant of such extension to the Master Servicer. If the Special Servicer determines from has received such review that:
an extension, then the Servicer shall continue to attempt to sell the REO Property for its fair market value for such period longer than three years as such extension permits (the “Extended Period”). If the Servicer has not received such an extension and the Servicer is unable to sell the REO Property within the period ending 3 months before the end of such third taxable year after its acquisition by the Trust or if the Servicer has received such an extension, and the Servicer is unable to sell the REO Property within the period ending three months before the close of the Extended Period, the Servicer shall, before the end of the three year period or the Extended Period, as applicable, (i) None of the income from Directly Operating purchase such Mortgaged REO Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject at a price equal to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
’s fair market value as acceptable to the Master Servicer or (ii) Directly Operating such Mortgaged Property as auction the REO Property could result to the highest bidder (which may be the Servicer) in income from such property that would be subject an auction reasonably designed to an REO Tax, but that produce a lease fair price prior to the expiration of such property to another party to operate such property, the three-year period or the performance of some services by an Independent Contractor with respect to such propertyExtended Period, or another method of operating such property would not result in income subject to an REO Tax, then as the Special Servicer case may (provided that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting positionbe. The Special Servicer's decision as Indenture Trustee shall (i) sign any document prepared or delivered to how each Administered REO Property shall be managed and operated shall be based on it by the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders or (andii) take any other action, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing each of (to the extent commercially reasonable i) and consistent with Section 3.17(b)(ii) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made reasonably requested by the Special Servicer, which would enable the Servicer, on behalf of the Trust, to request such grant of extension.
(b) If title Notwithstanding any other provisions of this Agreement, no REO Property acquired by the Trust shall be rented (or allowed to continue to be rented) or otherwise used by or on behalf of the Trust in such a manner or pursuant to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner terms that does not and will notwould: (i) cause such REO Property to fail to qualify as "“foreclosure property" ” within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in subject any Trust to the receipt by any REMIC Pool imposition of any "federal income taxes on the income earned from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(iincluding any taxes imposed by reason of Sections 860F or 860G(c) all insurance premiums due of the Code, unless the Servicer has agreed to indemnify and payable in hold harmless the Trust with respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in to the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedingstaxes.
(c) Without limiting Prior to acceptance by the generality Servicer of the foregoing, the Special Servicer shall not, with respect an offer to sell any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New LeaseServicer shall notify the Master Servicer of such offer in writing which notification shall set forth all material terms of said offer (each a “Notice of Sale”). The Master Servicer shall be deemed to have approved the sale of any REO Property unless the Master Servicer notifies the Servicer in writing, by within five (5) days after its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% receipt of the construction related Notice of such building or other improvement was completed before default on Sale, that it disapproves of the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Poolsale, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of proceed with such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Propertysale.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Servicing Agreement (Thornburg Mortgage Securities Corp)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination), the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) -216- of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(fe) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2007-C7)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundOwner Trust. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F 857(b)(4)(B) of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable feasible means exists to operate such property as REO Property without the Owner Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax AdministratorOwner Trustee and the Indenture Trustee, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the Owner Trust shall consult with the Indenture Trustee and the Special Servicer, the Tax Administrator Servicer and shall advise the Indenture Trustee and the Special Servicer of the Tax AdministratorOwner Trust's federal income tax reporting position with respect to the various sources of income that the Owner Trust Fund would derive under the Proposed Plan. In addition, the Owner Trust shall (to the maximum extent possible) advise the Indenture Trustee and the Special Servicer of the estimated amount of taxes that the Owner Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax AdministratorOwner Trust, the Special Servicer shall consult with the Indenture Trustee and shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based in either case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Owner Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) the net after-tax REO Revenues received by the Owner Trust with respect to such property without materially impairing and, to the extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers and asset managers operating acquired mortgaged property comparable to the respective Mortgaged Property. The Owner Trustee, the Indenture Trustee and the Special Servicer's ability to promptly sell such property for a fair price. In Servicer may consult with counsel at the expense of the Owner Trust in connection with performing their respective duties determinations required under this Section 3.17(a). None of the Owner Trustee, both the Indenture Trustee or the Special Servicer and shall be liable to the Tax Administrator may consult with counsel and tax accountantsOwner Trust, the reasonable cost holders of which consultation the Bonds or the Owner Trust Certificates, the other parties hereto or each other, nor shall the Owner Trust be covered byliable to any such holders or to the other parties hereto, for errors in judgment made in good faith in the exercise of their discretion while performing their respective responsibilities under this Section 3.17(a). Nothing in this Section 3.17(a) is intended to prevent the sale of a 57 Defaulted Mortgage Loan or REO Property pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 3.18.
(b) If title to any Administered REO Mortgaged Property is acquiredacquired (thereby becoming an REO Property), the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Owner Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale sale. Except as provided in Section 3.17(a), the Special Servicer shall not enter into any lease, contract or other agreement that causes the Owner Trust to receive, and (unless required to do so under any lease, contract or agreement to which the Special Servicer or the Owner Trust may become a manner that does party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to a Mortgage Loan) shall not and will not: (i) cause such REO Property or allow the Owner Trust to fail to qualify as receive any "net income from foreclosure property" within the meaning of that is subject to taxation under Section 860G(a)(8) of the Code for purposes of Section 860D(a857(b)(4)(B) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Propertyroperty;
(ii) all real estate and personal property taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereonthereon (including taxes or other amounts which could constitute liens prior to or on parity with the lien of the related Mortgage);
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) through (iv) above with respect to such REO Property, the Master Special Servicer shall, at the direction of the Special Servicer, shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officer's Certificate delivered to the Master Owner Trustee and the Indenture Trustee) the Special Servicer would not make such advances if the Special Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Special Servicer may in its sole discretion make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting If consistent with the generality of the foregoingdeterminations made pursuant to Section 3.17(a), the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall (A) may not be inconsistent herewith and herewith, (B) shall reflect an agreement reached at arm's lengthlength and (C) shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation ss.1.856.4(b)(5);
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Owner Trust) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receiptreceipt but only to the extent consistent with the provisions of Section 856 of the Code and Treasury Regulation ss.1.856.4(b)(5);
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Servicing Agreement (Imh Assets Corp Impac CMB Trust 1998 C1 Col Mor Bond 1998 C1)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review thatin compliance with the Servicing Standard that in its good faith and reasonable judgment:
(i) None of the income from Directly Operating such Mortgaged REO Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), and the Special Servicer does not engage in any of the activities described in the definition of "Directly Operate" that would cause 141 such REO Property to cease to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code, then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it such alternative is commercially reasonablefeasible and would result in a greater net recovery on a present value basis than earning income subject to an REO Tax) acquire such Mortgaged Property as REO Property and so lease or operate manage such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no such method of operation is commercially reasonable means exists to operate feasible and would result in a greater net recovery on a present value basis than leasing or other method of operating such property as REO Property without the Trust Fund incurring or possibly incurring that would not incur an REO Tax on income from such propertyTax, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of the Special Servicertime after receipt of such plan, the Tax Administrator shall consult with the Special Servicer and shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Tax Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax Administrator's tax reporting position. The Special Servicer's decision as expenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to how each Administered REO Property this section shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as reimbursed to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw it from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, Trust Fund in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedingsSection 10.01(e).
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2006-C4)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (Property, other than a the Cherry Creek Mall Mortgaged Property, the Annapolis Mall Mortgaged Property, the Westfield Portfolio Mortgaged Property that secures an Outside Serviced Loan Combination)or the Sangertown Square Mortgaged Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO TaxTAX"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided PROVIDED, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed PlanPROPOSED PLAN") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property, other than an REO Property that was formerly the Cherry Creek Mall Mortgaged Property, the Annapolis Mall Mortgaged Property, the Westfield Portfolio Mortgaged Property or the Sangertown Square Mortgaged Property, shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section SECTION 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair priceproperty. In connection with performing their respective duties under this Section SECTION 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property, other than an REO Property that was formerly the Cherry Creek Mall Mortgaged Property, the Annapolis Mall Mortgaged Property, the Westfield Portfolio Mortgaged Property or the Sangertown Square Mortgaged Property, is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) not cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section SECTION 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. , Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related Pool REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related Pool REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Special Servicer shall, at the direction of the Special Servicer, shall make Servicing Advances in such amounts as are necessary for such purposes unless the Master Special Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; providedPROVIDED, howeverHOWEVER, that the Master Special Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings. The Special Servicer shall notify the Master Servicer if it shall have made any such Servicing Advance within the previous 30-day period.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered any REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered any REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered any Mortgaged Property as REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable Servicer as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC PoolI, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may shall contract with any Independent Contractor for the operation and management of any Administered REO Property; provided , other than an REO Property that was formerly the Cherry Creek Mall Mortgaged Property, the Annapolis Mall Mortgaged Property, the Westfield Portfolio Mortgaged Property or the Sangertown Square Mortgaged Property, PROVIDED that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section SECTION 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section SECTION 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations Regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section SECTION 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section SECTION 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section SECTION 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Structured Asset Sec Corp Com Mort Pas THR Certs Ser 2000-C3)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination), the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect protect, operate and operate lease such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt timely disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool the Trust Fund of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust EventCode. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent in the best interests of and for the benefit of the Certificateholders (as determined by the Special Servicer in its good faith and reasonable judgment and in accordance with the Servicing Standard andStandard). Subject to this Section 3.17, consistent the Special Servicer may earn "net income from foreclosure property" within the meaning of Code Section 860G(c) if it determines that earning such income is in the best interests of Certificateholders on a net after-tax basis as compared with net leasing such REO Property or operating such REO Property on a different basis. In connection therewith, the Special Servicer shall deposit or cause to be deposited on a daily basis (and in no event later than the Business Day following receipt of such funds) in the applicable REO Account all revenues received by it with respect to each REO Property and the related REO Loan, and shall withdraw or cause to be withdrawn from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, leasing and maintenance and disposition of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if applicable; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate maintain and restore lease such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) - (iv) above with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in shall advance from its own funds such amounts amount as are is necessary for such purposes unless the Master Servicer determinesdetermines (as evidenced by an Officer's Certificate delivered to the Trustee, in accordance the Paying Agent and the Depositor) such advances would, if made, constitute Nonrecoverable Servicing Advances. The Special Servicer shall give the Servicer and the Trustee not less than five Business Days' notice, together with all information reasonably requested by the Servicer (upon which the Servicer may conclusively rely) before the date on which the Servicer is requested to make any Servicing Standard, that such payment would be a Nonrecoverable AdvanceAdvance with respect to an REO Property; provided, however, that the Master Servicer only two Business Days' notice shall be required in respect of Servicing Advances required to be made on an urgent or emergency basis (which may include, without limitation, Servicing Advances required to make any such Servicing Advance without regard to recoverability if it is a necessary fee tax or expense incurred in connection with the defense or prosecution of legal proceedingsinsurance payments).
(cb) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) permit the Trust Fund to enter into, renew or extend any New Lease with respect to such Administered any REO Property, if the New Lease, Lease by its terms would will give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered any REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered Operate, any REO Property on any date more than 90 days after the related REO Acquisitionits acquisition date; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master ServicerServicer (or, at if required by Section 3.03(c), the direction of Trustee or the Special ServicerFiscal Agent, and shall be reimbursable as applicable) as a Servicing Advance) to the effect that such action would will not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Poolthe Trust Fund, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(dc) The Special Servicer may shall contract with any Independent Contractor for the operation and management of any Administered REO Property; Property within 90 days of the acquisition date thereof, provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses an expense of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration light of the nature and locality of such Administered REO the Mortgaged Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, Contractor (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(bsubsection (a) abovehereof, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receiptfor deposit in the REO Account no less frequently than monthly;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer and the Trust by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(fd) Notwithstanding anything When and as necessary, the Special Servicer shall send to the contraryTrustee and the Servicer a statement prepared by the Special Servicer setting forth the amount of net income or net loss, this Section 3.17 shall as determined for federal income tax purposes, resulting from the operation and management of a trade or business on, the furnishing or rendering of a non-customary service to the tenants of, or the receipt of any other amount not apply to constituting Rents from Real Property in respect of, any Outside Administered REO PropertyProperty in accordance with Sections 3.17(a) and 3.17(b).
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a Serviced Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Serviced Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Serviced Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Serviced Mortgaged Property may be Directly Operated by the Special Servicer as Administered REO Property;
(ii) Directly Operating such Serviced Mortgaged Property as an Administered REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special ServicerServicer (exercised in accordance with the Servicing Standard), it such alternative is commercially reasonable) acquire such Serviced Mortgaged Property as Administered REO Property and so lease or operate such Administered REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as Administered REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as Administered REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as Administered REO Property. Such plan -------------- shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Serviced Mortgaged Property as Administered REO Property), with any amendments required to be made thereto as ) or (B) manage such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax REMIC Administrator's tax reporting positionexpenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(e). ---------------- The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered Loan Combination REO Property related to a Serviced Loan CombinationProperty, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, ) by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective Serviced Mortgaged Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax REMIC Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a)(xiii) consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such Administered REO Property for the benefit of the Certificateholders (and, in the case of any Administered Loan Combination REO Property related to a Serviced Loan CombinationProperty, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such Administered REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such Administered REO Property;
(ii) all real estate taxes and assessments in respect of such Administered REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such Administered REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate manage and restore such Administered REO Property. To the extent that amounts on deposit in the related applicable REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such Administered REO Property, the Master Servicer shall, at the direction of the Special Servicer, subject to Section 3.03(c), shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officer's Certificate delivered to the Trustee) the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC PoolI, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Unless Section 3.17(a)(i) applies, the Special Servicer may shall contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the applicable Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the applicable Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated (other than holding such REO Property primarily for sale to customers (other than the sale of REO Property pursuant to Section 3.18), or the performance of any construction work thereon) by the such Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the such Special Servicer may (provided that in the good faith and reasonable judgment of the such Special Servicer, exercised in accordance with the Servicing Standard, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or otherwise operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the such Special Servicer shall deliver to the Tax AdministratorTrustee and the Controlling Class Representative, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, income and good faith estimates of the amount of income from each such source. Upon request Within a reasonable period of the Special Servicertime after receipt of such plan, the Tax Administrator Trustee shall consult with such Special Servicer and shall advise the such Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Trustee shall (to the maximum extent reasonably possible) advise such Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax AdministratorTrustee, the such Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The applicable Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard andshall, further, based on the good faith and reasonable judgment of the Special Servicer as subject to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) , be in accordance with the net after-tax REO Revenues received with respect to such property without materially impairing Servicing Standard. Neither the Special Servicer's ability Servicers nor the Trustee shall be liable to promptly sell such property the Certificateholders, the Trust, the other parties hereto or each other for a fair price. In connection with errors in judgment made in good faith in the exercise of their discretion while performing their respective duties responsibilities under this Section 3.17(a), both . Nothing in this Section 3.17(a) is intended to prevent the Special Servicer sale of an REO Property pursuant to the terms and subject to the Tax Administrator may consult with counsel and tax accountants, the reasonable cost conditions of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special ServicerSection 3.18.
(b) If title to any Administered REO Property is acquired, the applicable Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in and for the case benefit of any Administered the holder of the B Loan Holder if such REO Property is related to a Serviced an A/B Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Pair) solely for the purpose of its prompt disposition and sale in accordance with Section 3.18, in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) Code or, except as contemplated by Section 3.17(a), either result in the receipt by any either Trust REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result Code, in an Adverse REMIC Event with respect to any Trust REMIC or in an Adverse Grantor Trust EventEvent with respect to the Grantor Trust. Except as contemplated by Section 3.17(a), the applicable Special Servicer shall not enter into any lease, contract or other agreement that causes the Trust to receive, and (unless required to do so under any lease, contract or agreement to which such Special Servicer or the Trust may become a party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to a Mortgage Loan) shall not cause or allow the Trust to receive, any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Furthermore, such Special Servicer may not, on behalf of the Trust, directly or through any agents, make any significant operating decisions with respect to such REO Property that address matters other than those consistent with the normal course of business, complete any significant construction on such REO Property or provide vendor financing for the sale of such REO Property. Subject to the foregoing, however, the applicable Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
; (iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (CSFB Mortgage Sec Corp Comm Mort Pass THR Cert Ser 2003-Cnp1)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (Property, other than a the UBS Warburg Building Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property, other than the REO Property that was formerly the UBS Warburg Building Mortgaged Property, shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property the REO Property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property, other than the REO Property that was formerly the UBS Warburg Building Mortgaged Property, is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related Pool REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related Pool REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Special Servicer shall, at the direction of the Special Servicer, shall make Servicing Advances in such amounts as are necessary for such purposes unless the Master Special Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Special Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings. The Special Servicer shall notify the Master Servicer if it shall have made any such Servicing Advance within the previous 30-day period.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered any REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered any REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered any Mortgaged Property as REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable Servicer as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC PoolI, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property (other than the REO Property that was formerly the UBS Warburg Building Mortgaged Property; , which is covered by Section 3.17A), provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Structured Asset Securities Corp)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the applicable Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the applicable Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the applicable Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the applicable Special Servicer may (provided that in the good faith and reasonable judgment of the applicable Special Servicer, exercised in accordance with the Servicing Standard, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or otherwise operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, then the applicable Special Servicer shall deliver to the Tax AdministratorTrustee, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, income and good faith estimates of the amount of income from each such source. Upon request Within a reasonable period of the Special Servicertime after receipt of such plan, the Tax Administrator Trustee shall consult with the applicable Special Servicer and shall advise the applicable Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Trustee shall (to the maximum extent reasonably possible) advise the applicable Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax AdministratorTrustee, the applicable Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. Subject to Section 3.17(b), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The applicable Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on in accordance with the Servicing Standard andStandard. Neither the applicable Special Servicer nor the Trustee shall be liable to the Certificateholders, furtherthe Trust, based on the other parties hereto or each other for errors in judgment made in good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest exercise of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with their discretion while performing their respective duties responsibilities under this Section 3.17(a), both ) with respect to any REO Property. Nothing in this Section 3.17(a) is intended to prevent the Special Servicer sale of any REO Property pursuant to the terms and subject to the Tax Administrator may consult with counsel and tax accountants, the reasonable cost conditions of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special ServicerSection 3.18.
(b) If title to any Administered REO Property is acquired, the applicable Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result Code, in an Adverse REMIC Event with respect to any REMIC Pool or in an Adverse Grantor Trust EventEvent with respect to either Grantor Trust Pool. Except as contemplated by Section 3.17(a), the applicable Special Servicer shall not enter into any lease, contract or other agreement with respect to any REO Property that causes the Trust to receive, and (unless required to do so under any lease, contract or agreement to which the applicable Special Servicer or the Trust may become a party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to the related Mortgage Loan) shall not, with respect to any REO Property, cause or allow the Trust to receive, any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the applicable Special Servicer shall have full power and authority to do any and all things in connection therewith with the administration of any REO Property, as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related its REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related applicable Special Servicer's REO Account in with respect of to any Administered REO Property are insufficient for the purposes set forth in contemplated by the preceding sentence with respect to such REO Property, the applicable Master Servicer shall, at the direction of the applicable Special Servicer, make a Servicing Advances in Advance of such amounts as are necessary for such purposes unless the such Master Servicer or Special Servicer determines, in accordance with the Servicing Standardits reasonable judgment, that such payment would advances would, if made, be a Nonrecoverable AdvanceServicing Advances; provided, however, that the such Master Servicer may in its sole discretion make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The applicable Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Trust) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the applicable Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the applicable Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the applicable Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The . Each Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the such Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) To the extent the costs of any contract with any Independent Contractor for the operation and management of any REO Property are greater that the revenues available from such property, such excess costs shall be deemed covered by, and be reimbursable as, a Sub-Servicing Agreement for purposes of Section 3.22Advance.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Commercial Mortgage Pass THR Cert Ser 2001-Ckn5)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination), the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to (1) tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to (2) the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party person to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property Mortgaged Property would not result in income subject to an REO Tax, then the Special Servicer may (provided that that, in the good faith and reasonable judgment judgement of the Special Servicer, it is commercially reasonablefeasible to do so) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that there is no commercially reasonable feasible means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver give written notice to the Tax Administrator, in writing, Trustee summarizing a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan notice shall include potential sources of income, and, and to the extent reasonably possiblefeasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of the Special Servicertime after receipt of such notice, the Tax Administrator Trustee (who may obtain the advice of tax professionals) shall consult with the Servicer and shall advise the Special Servicer of the Tax AdministratorTrustee's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Trustee shall (to the extent feasible) advise the Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax AdministratorTrustee, the Special Servicer Servicer, upon consultation with the Trustee (who may in turn obtain advice of tax counsel, the cost of which shall be an Extraordinary Expense) shall decide either to (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based in either case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest interests of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent institutional mortgage loan servicers and asset managers operating acquired mortgage property comparable to promptly sell such property for a fair priceREO Property. In The Servicer may consult with counsel (the expense of which shall be an Extraordinary Expense) in connection with performing their respective duties determinations required under this Section 3.17(a), both . Neither the Special Servicer and nor the Tax Administrator may consult with counsel and tax accountantsTrustee shall be liable to the Certificateholders, the reasonable cost Trust Fund or the FDIC for errors in judgement made in good faith in the exercise of which consultation shall be covered by, its discretion while performing its responsibilities under this Section 3.17(a). Nothing in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage Asset pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 3.18.
(b) If title to the Trustee acquires any Administered REO Property is acquiredpursuant to Section 3.09, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by provided in Section 3.17(a), either result in the receipt by any REMIC Pool the Trust Fund of any income subject to the tax on "income from non-permitted assetsprohibited transactions" within the meaning of under Section 860F(a)(2)(B860F(a) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust EventCode. Subject to the foregoing, howeverforegoing and to the specific requirements and prohibitions of this Agreement, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard manner in which the Servicer would manage and operate such property if it were owned by the Servicer, all on such terms and for such period as the Servicer deems to be in the best interests of Certificateholders, and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, leasing and maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iviii) all costs and expenses necessary to maintain, lease, selloperate, protect, manage, operate manage and restore sell such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence (i) - (iii) above with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in shall advance from its own funds such amounts amount as are is necessary for such purposes unless (as evidenced by an Officers' Certificate (consistent with the Master requirements of Section 4.03(e)) delivered to the Trustee) the Servicer determineswould not make such advances if the Servicer owned such REO Property or, in accordance with the Servicing StandardServicer's reasonable good faith judgment, that the payment of such payment would amounts will not be a Nonrecoverable Advancerecoverable from the operation or sale of such REO Property; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability advance even if it is not recoverable from the operation or sale of such property if it is deemed by the Servicer to be a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's lengthherewith;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates subject to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall may require, or shall may be administered to require, that the Independent Contractor, in a timely manner, Contractor (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(bsubsection (b) abovehereof, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iviii) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder to the Trustee on behalf of Certificateholders with respect to the operation and management of any such Administered REO Property; and
(viv) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(fd) Notwithstanding anything to The Servicer shall prepare and file reports of foreclosure and abandonment in accordance with Section 6050J of the contrary, this Section 3.17 shall not apply to any Outside Administered REO PropertyCode.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Fdic Remic Trust 1996-C1)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review review, in its good faith and reasonable judgment, that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property Mortgaged Property that would be subject to an REO Tax, but that a lease of such property Mortgaged Property to another party to operate such propertyMortgaged Property, or the performance of some services by an Independent Contractor with respect to such propertyMortgaged Property, or another method of operating such property Mortgaged Property would not result in income subject to an REO Tax, then the Special Servicer may (provided that that, in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property Mortgaged Property as REO Property could result in income subject to an REO Tax and, in the good faith and reasonable judgment of the Special Servicer, that no commercially reasonable feasible means exists to operate such property Mortgaged Property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such propertyMortgaged Property, then the Special Servicer shall deliver to the Tax AdministratorTrustee, in writing, a proposed plan (the "Proposed Plan") to manage such property Mortgaged Property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the Trustee shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Trustee shall (to the maximum extent possible) advise the Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax AdministratorTrustee, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such REO Property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such REO Property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall in any event be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) maximize the net after-tax REO Revenues Income received by the Trust with respect to such property REO Property without materially impairing and adversely affecting the Special Servicer's ability to promptly sell such property for a fair priceREO Property in accordance with this Agreement and, to the extent consistent with the foregoing, in accordance with the same manner that the Special Servicer would operate and manage such REO Property if it were owned by the Special Servicer. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax Administrator Trustee may consult with counsel and tax accountantsknowledgeable in such matters at the expense of the Trust Fund in connection with determinations required under this Section 8.20(a). Neither the Special Servicer nor the Trustee shall be liable to the Certificateholders, the Trust, the other parties hereto or each other for errors in judgment made in good faith in the reasonable cost exercise of which consultation shall be covered bytheir discretion while performing their respective responsibilities under this Section 8.20(a) or, to the extent it relates to federal income tax consequences for the Trust, Section 8.20(b) below. Nothing in this Section 8.20(a) is intended to prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 8.31.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated permitted by Section 3.17(a8.20(a), either result in the receipt by any REMIC Pool the Trust of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse any "net income from foreclosure property" which is subject to taxation under the REMIC Event or an Adverse Grantor Trust EventProvisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with in the Servicing Standard and, consistent therewith, best interests of and for the benefit of the Certificateholders (as determined by the Special Servicer in its good faith and reasonable judgment). The Special Servicer shall withdraw from the related REO Account, to the extent of amounts on deposit therein segregate and hold all revenues received by it with respect to any Administered REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to any REO Property one or more segregated accounts (each, an "REO Account"), each of which shall be an Eligible Account and shall be entitled "Aetna Life Insurance Company, as Special Servicer for State Street Bank and Trust Company, as Trustee for the holders of Aetna Commercial Mortgage Trust Multiclass Pass-Through Certificates, Series 1997-▇▇▇▇, REO Account." The Special Servicer shall be entitled to any interest or investment income earned on funds deposited in an REO Account to the extent provided in Section 5.1(e). The Special Servicer shall deposit or cause to be deposited in the related REO Account within one Business Day after receipt all REO Income received by it with respect to any REO Property, and shall withdraw therefrom, funds necessary for the proper operation, management, management and maintenance and disposition of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore maintain such REO Property. To the extent that amounts on deposit in the related REO Collection Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) - (iv) above with respect to such REO Property, the Master Servicer shall, (at the direction of the Special Servicer, make Servicing Advances in ) shall advance from its own funds such amounts amount as are is necessary for such purposes unless (as evidenced by an Officer's Certificate delivered by the Master Servicer determinesto the Trustee and the Special Servicer) or if such advances would, in accordance with the Servicing Standardif made, that such payment would be a constitute Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedingsAdvances.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses an expense of the Trust Fund andTrust, in the case payable out of any Administered related REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Income) shall be reasonable and customary in consideration light of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, Contractor (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in subsection (b) of this Section 3.17(b) above, 8.20 and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues REO Income collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d8.20(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc)
Management of REO Property. (a) Prior In the event the Trust acquires ownership of any REO Property in respect of any Mortgage Loan, the deed or certificate of sale shall be issued to the Indenture Trustee, or to its nominee, on behalf of the Securityholders and the Insurer. The Servicer shall use its reasonable best efforts to sell, any REO Property as expeditiously as possible and in accordance with the provisions of this Agreement, as applicable, but in all events within the time period, and subject to the conditions set forth in Section 5.09 and prior to the close of the third taxable year after its acquisition by it the Trust unless the Indenture Trustee and (so long as any Notes are Outstanding or any Reimbursement Amounts remain due and owing to the Insurer and no Insurer Default has occurred and is continuing) the Insurer shall have been supplied with an Opinion of title Counsel to the effect that the holding by the Trust of such REO Property subsequent to such three-year period will not result in the imposition of taxes on “prohibited transactions” of any REMIC created under the Trust Agreement as defined in section 860F of the Code or cause any REMIC created hereunder to fail to qualify as a REMIC at any time that any Notes or Certificates are Outstanding, in which case the Trust may continue to hold such REO Property (subject to any conditions contained in such Opinion of Counsel and the other requirements of this Section 3.07(a)). Pursuant to its efforts to sell such REO Property, the Servicer shall protect and conserve, such REO Property in the manner and to such extent required by this Agreement, subject to Section 5.09 hereof. The decision of the Servicer to foreclose, or to continue the foreclosure process, on a defaulted Mortgage Loan shall be subject to a determination by the Servicer that the related Mortgaged Property (will not fail to qualify as “foreclosure property” within meaning of Section 860G(a)(8) of the Code and that the proceeds of such foreclosure would more likely than not exceed the costs and expenses of bringing such a proceeding and liquidating the REO Property expected to be obtained through such foreclosure. Notwithstanding any other than a provision of this Agreement, no Mortgaged Property that secures an Outside Serviced Loan Combination), the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If shall be rented (or allowed to continue to be rented) or otherwise used for the Special Servicer determines from such review that:
(i) None production of income by or on behalf of the income from Directly Operating Trust in such Mortgaged Property would be subject a manner or pursuant to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property any terms that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Mortgaged Property to fail to qualify as "“foreclosure property" ” within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by subject any REMIC created under the Trust Agreement to the imposition of any federal, state or local income taxes on the income earned from such Mortgaged Property, unless the Servicer has agreed to indemnify and hold harmless the Trust and the Trust Estate with respect to the imposition of any such taxes. The Servicer shall cause to be deposited, within the time period specified in Section 3.17(a3.02(b), either result as applicable, in the receipt by any REMIC Pool Collection Account, all revenues net of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject Servicing Advances received with respect to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO AccountProperty and shall retain, or cause to the extent of amounts on deposit therein with respect to any Administered REO Propertybe withdrawn therefrom, funds necessary for the proper operation, management, management and maintenance of the REO Property and the fees of any managing agent acting on behalf of the Servicer. The disposition of REO Property shall be carried out by the Servicer for cash at such REO Propertyprice, including:
(i) all insurance premiums due and payable upon such terms and conditions, as the Servicer deems to be in respect the best interest of the Noteholders, the Certificateholders, the Trust and the Insurer and, as soon as practicable thereafter, the expenses of such REO Property;
(ii) all real estate taxes and assessments in respect sale shall be paid. The cash proceeds of such the sale of the REO Property that may result shall be promptly deposited in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary Collection Account, pursuant to maintainSection 3.02(b), leaseas applicable, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect net of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make related unreimbursed Servicing Advances in such (without duplication of amounts as are necessary for such purposes unless paid pursuant to Section 3.03(vi)), payable to the Master Servicer determines, in accordance with the Servicing StandardSection 3.03, that such for payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection accordance with the defense or prosecution of legal proceedingsSection 5.01 herein.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Sale and Servicing Agreement (IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2007-H1)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the -180- construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC PoolI or the related Loan REMIC, as applicable, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2005-C1)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such -------- Mortgaged Property may be Directly Operated by the Special Servicer as REO PropertyProperty (other than the performance of other actions that require an Independent Contractor);
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property Mortgaged Property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Tax Administrator shall (to the maximum extent possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting positionposition or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. The Special Servicer's decision as to how each Administered REO Property Property, shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) maximize the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and adversely affecting the Special Servicer's ability to promptly sell such property the REO Property in accordance with this Agreement and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Neither the Special Servicer nor the Tax Administrator shall be liable to the Certificateholders, the Trust Fund, the other parties hereto or each other for a fair priceerrors in judgment made in good faith in the reasonable exercise of their discretion while performing their respective duties under this Section 3.17(a). In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property Property, is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, or in the case of any Administered a Loan Pair REO Property related to Property, in the best interest of the Certificateholders and the applicable Companion Loan Noteholders (as a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(scollective whole)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any either REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related applicable REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, dispose of, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related applicable REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such any Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such any Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered any REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Poolthe Lower-Tier REMIC, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may may, and if so required to prevent the Administered REO Property from failing to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code, shall contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund andFund, in the case or with respect to any Loan Pair REO Property, which fees shall be netted out of any Administered collections on such Loan Pair REO Property that relates prior to a Serviced Loan Combinationtheir being remitted to the Special Servicer, and to the related Serviced Non-extent such collections are insufficient to cover such fees, shall be an expense of the Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Treasury Regulations Section 1.856-4(b)(5) of the Treasury regulations or any successor provision)), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Greenwich Capital Commercial Fund Corp Comm Mort Tr 2003-C1)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination), the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) -221- of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Structured Asset Securities Corp Ii)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review review, in its good faith and reasonable judgment, that:
(i) None none of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO TaxTAX"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;; 134
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property Mortgaged Property that would be subject to an REO Tax, but that a lease of such property Mortgaged Property to another party to operate such propertyMortgaged Property, or the performance of some services by an Independent Contractor with respect to such propertyMortgaged Property, or another method of operating such property Mortgaged Property would not result in income subject to an REO Tax, then the Special Servicer may (provided that that, in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property Mortgaged Property as REO Property could result in income subject to an REO Tax and, in the good faith and reasonable judgment of the Special Servicer, that no commercially reasonable feasible means exists to operate such property Mortgaged Property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such propertyMortgaged Property, then the Special Servicer shall deliver to the Tax AdministratorTrustee, in writing, a proposed plan (the "Proposed PlanPROPOSED PLAN") to manage such property Mortgaged Property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the Trustee shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Trustee shall (to the maximum extent possible) advise the Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax AdministratorTrustee, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such REO Property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such REO Property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall in any event be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer Servicer, consistent with the Servicing Standard, as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) maximize the net after-tax REO Revenues Income received by the Trust with respect to such property REO Property without materially impairing and adversely affecting the Special Servicer's ability to promptly sell such property for a fair priceREO Property in accordance with this Agreement. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax Administrator Trustee may consult with counsel and tax accountantsknowledgeable in such matters at the expense of the Trust Fund in connection with determinations required under this Section 8.20(a). Neither the Special Servicer nor the Trustee shall be liable to the Certificateholders, the Trust, the other parties hereto or each other for errors in judgment made in good faith in the reasonable cost exercise of which consultation shall be covered bytheir discretion while performing their respective responsibilities under this Section 8.20(a) or, to the extent it relates to federal income tax consequences for the Trust, Section 8.20(b) below. Nothing in this Section 8.20(a) is intended to prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 8.31.
(b) If title to any Administered REO Property is acquired, the Special Servicer or an Independent Contractor chosen by the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool the Trust of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event Event. Except as otherwise expressly provided herein, the Special Servicer shall not enter into any lease, contract or an Adverse Grantor other agreement that causes REMIC I to receive, and (unless required to do so under any lease, contact or agreement to which the Special Servicer or the Trust Eventmay become a party or a successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to a Mortgage Loan) shall not cause or allow REMIC I to receive, any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent in the best interests of and for the benefit of the Certificateholders in accordance with the Servicing Standard (as determined by the Special Servicer in its good faith and reasonable judgment) and, consistent therewith, shall direct the Master Servicer to withdraw from the related REO Collection Account, to the extent of amounts on deposit therein with respect to any Administered each REO Property, and deliver to the Special Servicer (for appropriate application), funds necessary for the proper operation, management, management and maintenance and disposition of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore maintain such REO Property. To the extent that amounts on deposit in the related REO Collection Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) - (iv) above with respect to such REO Property, the Master Servicer shall, (at the direction of the Special Servicer, make Servicing Advances in ) shall advance from its own funds such amounts amount as are is necessary for such purposes unless the Master Servicer determinessuch advances would, in accordance with the Servicing Standardif made, that such payment would be a constitute Nonrecoverable AdvanceAdvances; provided, however, that the Master Servicer may (at the direction of the Special Servicer) shall make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedingsproceedings and such advance shall be deemed to constitute a recoverable Servicing Advance.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the The terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses an expense of the Trust Fund andTrust, in the case payable out of any Administered related REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Income) shall be reasonable and customary in consideration light of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, Contractor (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in subsection (b) of this Section 3.17(b) above, 8.20 and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues REO Income collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d8.20(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan CombinationTrust Mortgage Loan), the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review thatin compliance with the Servicing Standard that in its good faith and reasonable judgment:
(i) None of the income from Directly Operating such Mortgaged Administered REO Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), and the Special Servicer does not engage in any of the activities described in the definition of "Directly Operate" that would cause such Administered REO Property to cease to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code, then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it such alternative is commercially reasonablefeasible and would result in a greater net recovery on a present value basis than earning income subject to an REO Tax) acquire such Mortgaged Property as REO Property and so lease or operate manage such Administered REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no such method of operation is commercially reasonable means exists to operate feasible and would result in a greater net recovery on a present value basis than leasing or other method of operating such property as Administered REO Property without the Trust Fund incurring or possibly incurring that would not incur an REO Tax on income from such propertyTax, the Special Servicer shall deliver to the Tax AdministratorTrustee, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the Trustee shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax AdministratorTrustee's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Trustee shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax AdministratorTrustee, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders ) or (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)B) the net after-tax REO Revenues received with respect to manage such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does would not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
an REO Tax on the income derived from such property. All of the Trustee's expenses (iii) including any ground rents in respect of such REO Property; and
(iv) all costs fees and expenses necessary of counsel or other experts reasonably retained by it) incurred pursuant to maintain, lease, sell, protect, manage, operate and restore such REO Property. To this section shall be reimbursed to it from the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, Trust Fund in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedingsSection 10.01(e).
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2008-C7)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially reasonable, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the maximum extent possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax REMIC Administrator's tax reporting positionexpenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(f). The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair priceStandard. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax REMIC Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a)(xiii) consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If Subject to Section 3.17(a)(iii), if title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) not cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool I, REMIC II or REMIC III of any "income from non-permitted nonpermitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) - (iv) above with respect to such REO Property, the Master Special Servicer shall, at the direction of the Special Servicer, shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officers' Certificate delivered to the Trustee and the Master Servicer) the Special Servicer would not make such advances if the Special Servicer owned such REO Property or the Special Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Special Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered the REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations Regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special ServicerServicer (exercised in accordance with the Servicing Standard), it such alternative is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax REMIC Administrator's tax reporting positionexpenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(e). The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered Loan Combination REO Property related to a Serviced Loan CombinationProperty, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, ) by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective Mortgaged Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax REMIC Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a)(xiii) consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the -150- case of any Administered Loan Combination REO Property related to a Serviced Loan CombinationProperty, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate manage and restore such REO Property. To the extent that amounts on deposit in the related applicable REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, subject to Section 3.03(c), shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officer's Certificate delivered to the Trustee) the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC PoolI, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Unless Section 3.17(a)(i) applies, the Special Servicer may shall contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.. -152-
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-McP1)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review review, in its good faith and reasonable judgment, that:
(i) None none of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO TaxTAX"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property Mortgaged Property that would be subject to an REO Tax, but that a 125 lease of such property Mortgaged Property to another party to operate such propertyMortgaged Property, or the performance of some services by an Independent Contractor with respect to such propertyMortgaged Property, or another method of operating such property Mortgaged Property would not result in income subject to an REO Tax, then the Special Servicer may (provided that that, in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property Mortgaged Property as REO Property could result in income subject to an REO Tax and, in the good faith and reasonable judgment of the Special Servicer, that no commercially reasonable feasible means exists to operate such property Mortgaged Property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such propertyMortgaged Property, then the Special Servicer shall deliver to the Tax AdministratorTrustee, in writing, a proposed plan (the "Proposed PlanPROPOSED PLAN") to manage such property Mortgaged Property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the Trustee shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Trustee shall (to the maximum extent possible) advise the Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax AdministratorTrustee, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such REO Property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such REO Property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall in any event be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer Servicer, consistent with the Servicing Standard, as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) maximize the net after-tax REO Revenues Income received by the Trust with respect to such property REO Property without materially impairing and adversely affecting the Special Servicer's ability to promptly sell such property for a fair priceREO Property in accordance with this Agreement. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax Administrator Trustee may consult with counsel and tax accountantsknowledgeable in such matters at the expense of the Trust Fund in connection with determinations required under this Section 8.20(a). Neither the Special Servicer nor the Trustee shall be liable to the Certificateholders, the Trust, the other parties hereto or each other for errors in judgment made in good faith in the reasonable cost exercise of which consultation shall be covered bytheir discretion while performing their respective responsibilities under this Section 8.20(a) or, to the extent it relates to federal income tax consequences for the Trust, Section 8.20(b) below. Nothing in this Section 8.20(a) is intended to prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 8.31.
(b) If title to any Administered REO Property is acquired, the Special Servicer or an Independent Contractor chosen by the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool the Trust of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event Event. Except as otherwise expressly provided herein, the Special Servicer shall not enter into any lease, contract or an Adverse Grantor other agreement that causes REMIC I to receive, and (unless required to do so under any lease, contact or agreement to which the Special Servicer or the Trust Eventmay become a party or a successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a 126 creditor's rights or remedies with respect to a Mortgage Loan) shall not cause or allow REMIC I to receive, any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent in the best interests of and for the benefit of the Certificateholders in accordance with the Servicing Standard (as determined by the Special Servicer in its good faith and reasonable judgment) and, consistent therewith, shall direct the Master Servicer to withdraw from the related REO Collection Account, to the extent of amounts on deposit therein with respect to any Administered each REO Property, and deliver to the Special Servicer (for appropriate application), funds necessary for the proper operation, management, management and maintenance and disposition of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore maintain such REO Property. To the extent that amounts on deposit in the related REO Collection Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) - (iv) above with respect to such REO Property, the Master Servicer shall, (at the direction of the Special Servicer, make Servicing Advances in ) shall advance from its own funds such amounts amount as are is necessary for such purposes unless the Master Servicer determinessuch advances would, in accordance with the Servicing Standardif made, that such payment would be a constitute Nonrecoverable AdvanceAdvances; provided, however, that the Master Servicer may (at the direction of the Special Servicer) shall make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedingsproceedings and such advance shall be deemed to constitute a recoverable Servicing Advance.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the The terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses an expense of the Trust Fund andTrust, in the case payable out of any Administered related REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Income) shall be reasonable and customary in consideration light of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, Contractor (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in subsection (b) of this Section 3.17(b) above, 8.20 and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues REO Income collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d8.20(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc Com Mort Ps THR Cer Se 1998-Cf1)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "“net income from foreclosure property" ” within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "“REO Tax"”), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property, other than holding such REO Property for sale or lease or performing construction work thereon;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, exercised in accordance with the Servicing Standard, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or otherwise operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and either (i) that the income or earnings with respect to such REO Property will offset any REO Tax relating to such income or earnings and will maximize the net recovery from the applicable REO Property to the Certificateholders (taking into account that any related Junior Interest Holder(s) do not have any obligation under the related Partition Agreement to bear the effect of any such REO Tax) or (ii) that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, then the Special Servicer shall deliver to the Tax AdministratorAdministrator and the Subordinate Class Representative (and, if a Partitioned Mortgage Loan is involved, the related Controlling Junior Interest Holder to the extent required under the applicable Partition Agreement), in writing, a proposed plan (the "“Proposed Plan"”) to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, income and good faith estimates of the amount of income from each such source. Upon request Within a reasonable period of the Special Servicertime after receipt of such plan, the Tax Administrator shall consult with the Special Servicer and shall advise the Special Servicer of the Tax Administrator's Trust’s federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Tax Administrator shall (to the maximum extent reasonably possible and at a reasonable fee, which fee shall be an expense of the Trust) advise the Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. Subject to Section 3.17(b), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's ’s decision as to how each Administered REO Property shall be managed and operated shall be based on in accordance with the Servicing Standard andStandard. Neither the applicable Special Servicer nor the Tax Administrator shall be liable to the Certificateholders, furtherthe Trustee, based on the Trust, the other parties hereto, any beneficiaries hereof or each other for errors in judgment made in good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest exercise of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with their discretion while performing their respective duties responsibilities under this Section 3.17(a), both ) with respect to any REO Property. Nothing in this Section 3.17(a) is intended to prevent the Special Servicer sale of any REO Property pursuant to the terms and subject to the Tax Administrator may consult with counsel and tax accountants, the reasonable cost conditions of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special ServicerSection 3.18.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (andor, in the case of any Administered REO Property related to a Serviced Loan CombinationPartitioned Mortgage Loan, on behalf of both the Certificateholders and the related Serviced Non-Trust Mortgage Loan Noteholder(sJunior Interest Holder(s)) ), as a collective whole, solely for the purpose of its prompt disposition and sale in accordance with Section 3.18, in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "“foreclosure property" ” within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "“income from non-permitted assets" ” within the meaning of Section 860F(a)(2)(B) of the Code or result Code, in an Adverse REMIC Event with respect to any REMIC Pool or in an Adverse Grantor Trust EventEvent with respect to any Grantor Trust Pool. Except as contemplated by Section 3.17(a), the Special Servicer shall not enter into any lease, contract or other agreement with respect to any REO Property that causes the Trust to receive, and (unless required to do so under any lease, contract or agreement to which the Special Servicer or the Trust may become a party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor’s rights or remedies with respect to the related Mortgage Loan) shall not, with respect to any REO Property, cause or allow the Trust to receive, any “net income from foreclosure property” that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith with the administration of any REO Property, as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related its REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related Special Servicer’s REO Account in with respect of to any Administered REO Property are insufficient for the purposes set forth in contemplated by the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, but subject to Section 3.11(h), make a Servicing Advances in Advance of such amounts as are necessary for such purposes unless the Master Servicer or the Special Servicer determines, in accordance with the Servicing Standardits reasonable judgment, that such payment would advances would, if made, be a Nonrecoverable AdvanceServicing Advances; provided, however, that the Master Servicer may in its sole discretion make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Securities Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review review, in its good faith and reasonable judgment, that:
(i) None none of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO TaxTAX"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property Mortgaged Property that would be subject to an REO Tax, but that a lease of such property Mortgaged Property to another party to operate such propertyMortgaged Property, or the performance of some services by an Independent Contractor with respect to such propertyMortgaged Property, or another method of operating such property Mortgaged Property would not result in income subject to an REO Tax, then the Special Servicer may (provided that that, in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property Mortgaged Property as REO Property could result in income subject to an REO Tax and, in the good faith and reasonable judgment of the Special Servicer, that no commercially reasonable feasible means exists to operate such property Mortgaged Property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such propertyMortgaged Property, then the Special Servicer shall deliver to the Tax AdministratorTrustee, in writing, a proposed plan (the "Proposed PlanPROPOSED PLAN") to manage such property Mortgaged Property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within three Business Days after receipt of such plan, the Trustee shall consult with the Special ServicerServicer and shall, the Tax Administrator shall within a reasonable time thereafter, advise the Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Trustee shall (to the maximum extent possible) advise the Special Servicer of the estimated amount of taxes that the Trust would be required to pay 152 with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax AdministratorTrustee, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such REO Property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such REO Property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall in any event be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer Servicer, consistent with the Servicing Standard, as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) maximize the net after-tax REO Revenues Income received by the Trust with respect to such property REO Property without materially impairing and adversely affecting the Special Servicer's ability to promptly sell such property for a fair priceREO Property in accordance with this Agreement. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax Administrator Trustee may consult with counsel and tax accountantsknowledgeable in such matters at the expense of the Trust Fund in connection with determinations required under this Section 8.20(a). Neither the Special Servicer nor the Trustee shall be liable to the Certificateholders, the Trust, the other parties hereto or each other for errors in judgment made in good faith in the reasonable cost exercise of which consultation shall be covered bytheir discretion while performing their respective responsibilities under this Section 8.20(a) or, to the extent it relates to federal income tax consequences for the Trust, Section 8.20(b) below. Nothing in this Section 8.20(a) is intended to prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 8.31.
(b) If title to any Administered REO Property is acquired, the Special Servicer or an Independent Contractor chosen by the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool the Trust of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event Event. Except as otherwise expressly provided herein, the Special Servicer shall not enter into any lease, contract or an Adverse Grantor other agreement that causes REMIC I to receive, and (unless required to do so under any lease, contact or agreement to which the Special Servicer or the Trust Eventmay become a party or a successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to a Mortgage Loan) shall not cause or allow REMIC I to receive, any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with in the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent best interests of amounts on deposit therein with respect to any Administered REO Property, funds necessary and for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction benefit of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, Certificateholders in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that Standard (as determined by the Master Special Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedingsits good faith and reasonable judgment).
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the The terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;; 153
(ii) the fees of such Independent Contractor (which shall be expenses an expense of the Trust Fund andTrust, in the case payable out of any Administered related REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Income) shall be reasonable and customary in consideration light of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, Contractor (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in subsection (b) of this Section 3.17(b) above, 8.20 and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues REO Income collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d8.20(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Heller Financial Commercial Mort Asset Corp Series 1999 Ph 2)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a the Sangertown Square Mortgaged Property that secures an Outside Serviced Loan CombinationProperties), the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that that, in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered ▇▇ ▇▇▇▇ REO Property related to a Serviced Loan CombinationProperty, the related Serviced affected ▇▇ ▇▇▇▇ Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, Noteholders) by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered ▇▇ ▇▇▇▇ REO Property related to a Serviced Loan CombinationProperty, the related Serviced affected ▇▇ ▇▇▇▇ Non-Trust Mortgage Loan Noteholder(s)Noteholders) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Trust Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC PoolI, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered ▇▇ ▇▇▇▇ REO Property that relates to a Serviced Loan CombinationProperty, the related Serviced ▇▇ ▇▇▇▇ Non-Trust Mortgage Loan Noteholder(s)Noteholders) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(fe) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered Sangertown Square REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Structured Asset Sec Corp Lb Ubs Com Mort Tr 2003-C8)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review thatin compliance with the Servicing Standard that in its good faith and reasonable judgment:
(i) None of the income from Directly Operating such Mortgaged REO Property would be subject to tax as "“net income from foreclosure property" ” within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "“REO Tax"”), and the Special Servicer does not engage in any of the activities described in the definition of “Directly Operate” that would cause the REO Property to cease to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code, then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it such alternative is commercially reasonablefeasible and would result in a greater net recovery on a present value basis than earning income subject to an REO Tax) acquire such Mortgaged Property as REO Property and so lease or operate manage such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no such method of operation is commercially reasonable means exists to operate such property as feasible and would result in a greater net recovery on a present value basis than leasing or other method of operating the REO Property without the Trust Fund incurring or possibly incurring that would not incur an REO Tax on income from such propertyTax, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "“Proposed Plan"”) to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's ’s federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax REMIC Administrator's tax reporting position’s expenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this Section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(e). The Special Servicer's ’s decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based and in any case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (andor, in if the case of any Administered REO Property related to was formerly a Serviced Loan CombinationMortgaged Property securing a Co-Lender Loan, the Certificateholders and the related Serviced Non-Trust Mortgage Loan Noteholder(s)), Companion Holder (as a collective wholewhole in accordance with the Servicing Standard, taking into account the subordinate nature of the Companion Loan, if applicable)) by maximizing (to the extent commercially reasonable feasible and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective Mortgaged Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax REMIC Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a)(xv), consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, conserve and protect and operate such REO Property for the benefit of the Certificateholders (andor, in if the case of any Administered REO Property related to was formerly a Serviced Loan CombinationMortgaged Property securing a Co-Lender Loan, the Certificateholders and the related Serviced Non-Trust Mortgage Loan Noteholder(sCompanion Holder (as a collective whole in accordance with the Servicing Standard, taking into account the subordinate nature of the Companion Loan, if applicable)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) not cause such REO Property to fail to qualify as "“foreclosure property" ” within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any ED Loan REMIC Pool or REMIC I, as applicable, of any "“income from non-permitted assets" ” within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate manage and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, subject to the second paragraph of Section 3.03(c), shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officer’s Certificate delivered to the Trustee) the Master Servicer would not make such advances if the Master Servicer owned such REO Property or the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Unless Section 3.17(a)(i) applies, the Special Servicer shall contract with any Independent Contractor (if required by the REMIC Provisions for the REO Property to remain classified as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code) for the operation and management of any REO Property; provided that:
(i) the terms and conditions of any such contract may not be inconsistent herewith and shall reflect an agreement reached at arm’s length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund) shall be reasonable and customary in consideration of the nature and locality of the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, pay all costs and expenses incurred in connection with the operation and management of such REO Property, including, without limitation, those listed in Section 3.17(b) above, and remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations hereunder for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(d) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) permit the Trust Fund to enter into, renew or extend any New Lease with respect to such Administered any REO Property, if the New Lease, Lease by its terms would will give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered any REO Property, other than the repair or maintenance thereof or the completion of a building or other improvement thereon, and then only if more than 10% of to the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of extent provided in Section 856(e)(4)(B) of the Code; or
(iv) except as otherwise provided for in Section 3.17(a)(i) and (a)(ii) above, Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered Operate, any REO Property on any date more than 90 days after the related REO Acquisitionits Acquisition Date; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable Servicer as a Servicing AdvanceAdvance unless nonrecoverable, in which case it shall be paid by the Master Servicer as an Additional Trust Fund Expense from amounts on deposit in the Certificate Account) to the effect that such action would will not cause such Administered REO Property to fail to qualify as "“foreclosure property" ” within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Poolthe Trust Fund, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation . Except as limited above in this Section 3.17 and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) ), the Special Servicer shall be obligated with respect thereto permitted to cause the Trust Fund to earn “net income from foreclosure property”, subject to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO PropertyServicing Standard.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C34)
Management of REO Property. (a) Prior to the acquisition by it of title to a Serviced Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Serviced Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Serviced Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Serviced Mortgaged Property may be Directly Operated by the Special Servicer as Administered REO PropertyProperty (other than the holding of such Administered REO Property primarily for sale to customers or the performance of any construction work thereon);
(ii) Directly Operating such Serviced Mortgaged Property as an Administered REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special ServicerServicer (exercised in accordance with the Servicing Standard), it such alternative is commercially reasonable) acquire such Serviced Mortgaged Property as Administered REO Property and so lease or operate such Administered REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as Administered REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as Administered REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as Administered REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Serviced Mortgaged Property as Administered REO Property), with any amendments required to be made thereto as ) or (B) manage such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax REMIC Administrator's tax reporting positionexpenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(e). The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered Loan Combination REO Property related to a Serviced Loan CombinationProperty, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, ) by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective Serviced Mortgaged Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax REMIC Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a)(xiii) consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such Administered REO Property for the benefit of the Certificateholders (and, in the case of any Administered Loan Combination REO Property related to a Serviced Loan CombinationProperty, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such Administered REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such Administered REO Property;
(ii) all real estate taxes and assessments in respect of such Administered REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such Administered REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate manage and restore such Administered REO Property. To the extent that amounts on deposit in the related applicable REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such Administered REO Property, the Master Servicer shall, at the direction of the Special Servicer, subject to Section 3.03(c), shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officer's Certificate delivered to the Certificate Administrator) the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance, unless such Servicing Advance would be a Nonrecoverable Advance, in which case such cost shall be an expense of the Trust) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC PoolI, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Unless Section 3.17(a)(i) applies, the Special Servicer may shall contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-Lc1)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonablefeasible) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable feasible means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax REMIC Administrator's tax reporting positionexpenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(f). The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based and in any case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable feasible and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers and asset managers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective Mortgaged Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax REMIC Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a)(xiii) consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) not cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool I, REMIC II or REMIC III of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, subject to the second paragraph of Section 3.03(c), shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officers' Certificate delivered to the Trustee and the Master Servicer) the Master Servicer would not make such advances if the Master Servicer owned such REO Property or the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered the REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations Regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Commercial Mortgage Pass Through Certiticates Series 1999 C2)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2005-C3)
Management of REO Property. (a) Prior to the acquisition by it of title to a any Mortgaged Property (other than securing a Mortgaged Property that secures an Outside Serviced Loan Combination)defaulted Mortgage Loan, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust FundTrust. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is would not be commercially reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax operate and that no commercially reasonable means exists to operate manage such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, then the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax AdministratorTrust's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the maximum extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust would be required to pay with respect to each such source of income from such REO Property. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the Tax Administrator's tax reporting positionincome derived from such property. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) the net after-tax REO Revenues received by the Trust with respect to such property without materially impairing its marketability and, to the extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers and asset managers operating acquired mortgaged property comparable to such REO Property. Both the Special Servicer's ability Servicer and the REMIC Administrator may consult with counsel knowledgeable in such matters at (to promptly sell such property for a fair price. In the extent reasonable) the expense of the Trust in connection with performing their respective duties determinations required under this Section 3.17(a), both . Neither the Special Servicer and nor the Tax REMIC Administrator may consult with counsel and tax accountantsshall be liable to the Certificateholders, the Trust, the other parties hereto or each other for errors in judgment made in good faith in the reasonable cost exercise of which consultation shall be covered bytheir discretion or in reasonable and good faith reliance on the advice of knowledgeable counsel while performing their respective responsibilities under this Section 3.17(a) or, to the extent it relates to federal income tax consequences for the Trust, Section 3.17(b) below. Nothing in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the terms and be reimbursable as, a Servicing Advance subject to be made by the Special Servicerconditions of Section 3.18.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any of REMIC Pool I, REMIC II or REMIC III of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event in respect of any such REMIC. Except as provided in Section 3.17(a), the Special Servicer shall not enter into any lease, contract or an Adverse Grantor other agreement that causes REMIC I to receive, and (unless required to do so under any lease, contract or agreement to which the Special Servicer or the Trust Eventmay become a party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or remedies with respect to a Mortgage Loan) shall not cause or allow REMIC I to receive any "net income from foreclosure property" that is subject to taxation under the REMIC Provisions. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Special Servicer shall direct the Master Servicer shall, at to make (and the direction of the Special Servicer, make Master Servicer shall so make) Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced in the manner contemplated by Section 3.11(g)) the Special Servicer or the Master Servicer determines, in accordance with the Servicing Standardits reasonable, good faith judgment, that such payment would be a Nonrecoverable Servicing Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may (and, except as otherwise permitted by Section 3.17(a), shall if it would avoid an Adverse REMIC Event) contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Trust) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall requirebe consistent with the provisions of Treasury Regulation ss.1.856-4(b)(5) and, or to the extent consistent therewith, shall be administered to require, require that the Independent Contractor, in a timely manner, (A) to the extent of available revenue from the REO Property, pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Mortgage Capital Funding Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an the Outside Serviced Loan CombinationTrust Mortgage Loan), the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review thatin compliance with the Servicing Standard that in its good faith and reasonable judgment:
(i) None of the income from Directly Operating such Mortgaged Administered REO Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), and the Special Servicer does not engage in any of the activities described in the definition of "Directly Operate" that would cause such Administered REO Property to cease to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code, then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may 164 (provided that in the good faith and reasonable judgment of the Special Servicer, it such alternative is commercially reasonablefeasible and would result in a greater net recovery on a present value basis than earning income subject to an REO Tax) acquire such Mortgaged Property as REO Property and so lease or operate manage such Administered REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no such method of operation is commercially reasonable means exists to operate feasible and would result in a greater net recovery on a present value basis than leasing or other method of operating such property as Administered REO Property without the Trust Fund incurring or possibly incurring that would not incur an REO Tax on income from such propertyTax, the Special Servicer shall deliver to the Tax Certificate Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the Certificate Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax Certificate Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the Certificate Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax Certificate Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax Certificate Administrator's tax reporting positionexpenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(e). The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based and in any case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered A/B REO Property related to a Serviced Loan CombinationProperty, the related Serviced NonB-Trust Mortgage Loan Noteholder(s)), ) (as a collective whole, ) by maximizing (to the extent commercially reasonable feasible and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective REO Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax Certificate Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a) and, to the extent such amounts relate to an A/B Loan Combination and/or an A/B REO Property, at the expense of the Trust Fund and the related B-Noteholder(s) payable pursuant to Section 3.05(e), consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, conserve and protect and operate such Administered REO Property for the benefit of the Certificateholders (and, in the case of any Administered A/B REO Property related to a Serviced Loan CombinationProperty, the related Serviced NonB-Trust Mortgage Loan Noteholder(s)) (as a collective whole) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either and will not result in either (i) the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in (ii) an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and 165 authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such Administered REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such Administered REO Property;
(ii) all real estate taxes and assessments in respect of such Administered REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such Administered REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate manage and restore such Administered REO Property. To the extent that amounts on deposit in the related applicable REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such Administered REO Property, the applicable Master Servicer shall, at the direction of the Special Servicer, subject to the second paragraph of Section 3.03(c), shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officer's Certificate delivered to the Trustee) the applicable Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the applicable Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoingUnless Section 3.17(a)(i) applies, the Special Servicer shall not, contract with respect to any Administered REO Property:
Independent Contractor (i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid required by the Master Servicer, at REMIC Provisions for the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such subject Administered REO Property to fail to qualify remain classified as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(aCode) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve 166 the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(fd) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2006-C5)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially reasonable, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage and operate such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax REMIC Administrator's tax reporting positionexpenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(f). The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based and in any case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)feasible) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers and asset managers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective Mortgaged Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax REMIC Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a)(xiii), consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If Subject to Section 3.17(a)(iii), if title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) not cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) or, except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool I, REMIC II or REMIC III of any "income from non-permitted nonpermitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence clauses (i) - (iv) above with respect to such REO Property, the Master Special Servicer shall, at the direction of the Special Servicer, shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officers' Certificate delivered to the Trustee and the Master Servicer) the Special Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Special Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall may not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including including, without limitation, those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered the REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations Regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a Mortgaged Property that secures an Outside Serviced Loan Combination)Property, the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided provided, that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall 126 deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting position. The Special Servicer's decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing (to the extent commercially reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property the REO Property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) cause such REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool of any "income from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Special Servicer shall, at the direction of the Special Servicer, shall make Servicing Advances in such amounts as are necessary for such purposes unless the Master Special Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Special Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings. The Special Servicer shall notify the Master Servicer if it shall have made any such Servicing Advance within the previous 30-day period.
(c) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered any REO Property, if the New Lease, by its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered any REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered any Mortgaged Property as REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable Servicer as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC PoolI, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; , provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)Fund) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;; 128
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Property.
(e) . The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 hereunder for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Commercial Mortgage Pass-Through Certificates Series 2000-C4)
Management of REO Property. (a) Prior to the acquisition by it of If title to a any Mortgaged Property is acquired in foreclosure or by deed in lieu of foreclosure (other than a Mortgaged Property that secures each, an Outside Serviced Loan Combination“REO Property”), the Special Servicer shall review the operation dispose of such Mortgaged REO Property and determine not later than the nature end of the income that would be derived from such property if it were acquired third taxable year after the year of its acquisition by the Trust FundFund unless the Servicer has applied for and received a grant of extension from the Internal Revenue Service to the effect that, under the REMIC Provisions and any relevant proposed legislation and under applicable state law, the applicable Trust may hold REO Property for a longer period without adversely affecting the REMIC status of such REMIC or causing the imposition of a federal or state tax upon such REMIC and has notified the Master Servicer of such extension being granted by providing a copy of the application and the grant of such extension to the Master Servicer. If the Special Servicer determines from has received such review that:
an extension, then the Servicer shall continue to attempt to sell the REO Property for its fair market value for such period longer than three years as such extension permits (the “Extended Period”). If the Servicer has not received such an extension and the Servicer is unable to sell the REO Property within the period ending 3 months before the end of such third taxable year after its acquisition by the Trust Fund or if the Servicer has received such an extension, and the Servicer is unable to sell the REO Property within the period ending three months before the close of the Extended Period, the Servicer shall, before the end of the three year period or the Extended Period, as applicable, (i) None of the income from Directly Operating purchase such Mortgaged REO Property would be subject to tax as "net income from foreclosure property" within the meaning of the REMIC Provisions or would be subject at a price equal to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "REO Tax"), then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
’s fair market value as acceptable to the Master Servicer or (ii) Directly Operating such Mortgaged Property as auction the REO Property could result to the highest bidder (which may be the Servicer) in income from such property that would be subject an auction reasonably designed to an REO Tax, but that produce a lease fair price prior to the expiration of such property to another party to operate such property, the three-year period or the performance of some services by an Independent Contractor with respect to such propertyExtended Period, or another method of operating such property would not result in income subject to an REO Tax, then as the Special Servicer case may (provided that in the good faith and reasonable judgment of the Special Servicer, it is commercially reasonable) acquire such Mortgaged Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no commercially reasonable means exists to operate such property as REO Property without the Trust Fund incurring or possibly incurring an REO Tax on income from such property, the Special Servicer shall deliver to the Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to manage such property as REO Property. Such plan shall include potential sources of income, and, to the extent reasonably possible, estimates of the amount of income from each such source. Upon request of the Special Servicer, the Tax Administrator shall advise the Special Servicer of the Tax Administrator's federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. After receiving the information described in the preceding sentence from the Tax Administrator, the Special Servicer shall implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as a result of the Tax Administrator's tax reporting positionbe. The Special Servicer's decision as Trustee shall (i) sign any document prepared or delivered to how each Administered REO Property shall be managed and operated shall be based on it by the Servicing Standard and, further, based on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders or (andii) take any other action, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, by maximizing each of (to the extent commercially reasonable i) and consistent with Section 3.17(b)(ii) the net after-tax REO Revenues received with respect to such property without materially impairing the Special Servicer's ability to promptly sell such property for a fair price. In connection with performing their respective duties under this Section 3.17(a), both the Special Servicer and the Tax Administrator may consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made reasonably requested by the Special Servicer, which would enable the Servicer, on behalf of the Trust, to request such grant of extension.
(b) If title Notwithstanding any other provisions of this Agreement, no REO Property acquired by the Trust Fund shall be rented (or allowed to continue to be rented) or otherwise used by or on behalf of the Trust Fund in such a manner or pursuant to any Administered REO Property is acquired, the Special Servicer shall manage, conserve, protect and operate such REO Property for the benefit of the Certificateholders (and, in the case of any Administered REO Property related to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt disposition and sale in a manner terms that does not and will notwould: (i) cause such REO Property to fail to qualify as "“foreclosure property" ” within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in subject any Trust to the receipt by any REMIC Pool imposition of any "federal income taxes on the income earned from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, including:
(iincluding any taxes imposed by reason of Sections 860F or 860G(c) all insurance premiums due of the Code, unless the Servicer has agreed to indemnify and payable in hold harmless the Trust Fund with respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in to the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, make Servicing Advances in such amounts as are necessary for such purposes unless the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedingstaxes.
(c) Without limiting Prior to acceptance by the generality Servicer of the foregoing, the Special Servicer shall not, with respect an offer to sell any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such Administered REO Property, if the New LeaseServicer shall notify the Master Servicer of such offer in writing which notification shall set forth all material terms of said offer (each a “Notice of Sale”). The Master Servicer shall be deemed to have approved the sale of any REO Property unless the Master Servicer notifies the Servicer in writing, by within five (5) days after its terms would give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% receipt of the construction related Notice of such building or other improvement was completed before default on Sale, that it disapproves of the related Serviced Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered REO Property on any date more than 90 days after the related REO Acquisition; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable as a Servicing Advance) to the effect that such action would not cause such Administered REO Property to fail to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Poolsale, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of proceed with such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO Propertysale.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Servicing Agreement (Structured Asset Securities Corp)
Management of REO Property. (a) Prior to the acquisition by it of title to a Mortgaged Property (other than a than, in each case, the Mortgaged Property that secures an Outside related to the ▇.▇. ▇▇▇▇▇▇ 2006-LDP8 Serviced Mortgage Loan Combinationand the 2006-C27 Serviced Mortgage Loans), the Special Servicer shall review the operation of such Mortgaged Property and determine the nature of the income that would be derived from such property if it were acquired by the Trust Fund. If the Special Servicer determines from such review thatin compliance with the Servicing Standard that in its good faith and reasonable judgment:
(i) None of the income from Directly Operating such Mortgaged REO Property would be subject to tax as "“net income from foreclosure property" ” within the meaning of the REMIC Provisions or would be subject to the tax imposed on "prohibited transactions" under Section 860F of the Code (either such tax referred to herein as an "“REO Tax"”), and the Special Servicer does not engage in any of the activities described in the definition of “Directly Operate” that would cause the REO Property to cease to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code, then such Mortgaged Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could result in income from such property that would be subject to an REO Tax, but that a lease of such property to another party to operate such property, or the performance of some services by an Independent Contractor with respect to such property, or another method of operating such property would not result in income subject to an REO Tax, then the Special Servicer may (provided that in the good faith and reasonable judgment of the Special Servicer, it such alternative is commercially reasonablefeasible and would result in a greater net recovery on a present value basis than earning income subject to an REO Tax) acquire such Mortgaged Property as REO Property and so lease or operate manage such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property as REO Property could result in income subject to an REO Tax and that no such method of operation is commercially reasonable means exists to operate such property as feasible and would result in a greater net recovery on a present value basis than leasing or other method of operating the REO Property without the Trust Fund incurring or possibly incurring that would not incur an REO Tax on income from such propertyTax, the Special Servicer shall deliver to the Tax REMIC Administrator, in writing, a proposed plan (the "“Proposed Plan"”) to manage such property as REO Property. Such plan shall include potential sources of income, and, and to the extent reasonably possiblecommercially feasible, estimates of the amount of income from each such source. Upon request Within a reasonable period of time after receipt of such plan, the REMIC Administrator shall consult with the Special Servicer, the Tax Administrator Servicer and shall advise the Special Servicer of the Tax REMIC Administrator's ’s federal income tax reporting position with respect to the various sources of income that the Trust Fund would derive under the Proposed Plan. In addition, the REMIC Administrator shall (to the extent reasonably possible) advise the Special Servicer of the estimated amount of taxes that the Trust Fund would be required to pay with respect to each such source of income. After receiving the information described in the two preceding sentence sentences from the Tax REMIC Administrator, the Special Servicer shall either (A) implement the Proposed Plan (after acquiring the respective Mortgaged Property as REO Property), with any amendments required to be made thereto as ) or (B) manage such property in a manner that would not result in the imposition of an REO Tax on the income derived from such property. All of the Tax REMIC Administrator's tax reporting position’s expenses (including any fees and expenses of counsel or other experts reasonably retained by it) incurred pursuant to this Section shall be reimbursed to it from the Trust Fund in accordance with Section 10.01(e). The Special Servicer's ’s decision as to how each Administered REO Property shall be managed and operated shall be based on the Servicing Standard and, further, based and in any case on the good faith and reasonable judgment of the Special Servicer as to which means would be in the best interest of the Certificateholders (andor, in if the case of any Administered REO Property related to was formerly a Serviced Loan CombinationMortgaged Property securing a Co-Lender Loan, the Certificateholders and the related Serviced Non-Trust Mortgage Loan Noteholder(s)), Companion Holder (as a collective wholewhole in accordance with the Servicing Standard, taking into account the subordinate nature of the Companion Loan, if applicable)) by maximizing (to the extent commercially reasonable feasible and consistent with Section 3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect to such property without materially impairing and, to the Special Servicer's ability extent consistent with the foregoing, in the same manner as would prudent mortgage loan servicers operating acquired mortgaged property comparable to promptly sell such property for a fair pricethe respective Mortgaged Property. In connection with performing their respective duties under this Section 3.17(a), both Both the Special Servicer and the Tax REMIC Administrator may may, at the expense of the Trust Fund payable pursuant to Section 3.05(a)(xv), consult with counsel and tax accountants, the reasonable cost of which consultation shall be covered by, and be reimbursable as, a Servicing Advance to be made by the Special Servicercounsel.
(b) If title to any Administered REO Property (other than, in each case, the REO Property related to the ▇.▇. ▇▇▇▇▇▇ 2006-LDP8 Serviced Mortgage Loan and the 2006-C27 Serviced Mortgage Loans) is acquired, the Special Servicer shall manage, conserve, conserve and protect and operate such REO Property for the benefit of the Certificateholders (andor, in if the case of any Administered REO Property related to was formerly a Serviced Loan CombinationMortgaged Property securing a Co-Lender Loan, the Certificateholders and the related Serviced Non-Trust Mortgage Loan Noteholder(sCompanion Holder (as a collective whole in accordance with the Servicing Standard, taking into account the subordinate nature of the Companion Loan, if applicable)) solely for the purpose of its prompt disposition and sale in a manner that does not and will not: (i) not cause such REO Property to fail to qualify as "“foreclosure property" ” within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a), either result in the receipt by any the Four Seasons Resort and Club - Dallas, TX Loan REMIC Pool or REMIC I of any "“income from non-permitted assets" ” within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing, however, the Special Servicer shall have full power and authority to do any and all things in connection therewith as are consistent with the Servicing Standard and, consistent therewith, shall withdraw from the related REO Account, to the extent of amounts on deposit therein with respect to any Administered such REO Property, funds necessary for the proper operation, management, maintenance and disposition of such REO Property, includingincluding without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell, protect, manage, operate manage and restore such REO Property. To the extent that amounts on deposit in the related REO Account in respect of any Administered REO Property are insufficient for the purposes set forth in the preceding sentence with respect to such REO Property, the Master Servicer shall, at the direction of the Special Servicer, subject to the second paragraph of Section 3.03(c), shall make Servicing Advances in such amounts as are necessary for such purposes unless (as evidenced by an Officer’s Certificate delivered to the Trustee or the Co-Trustee) the Master Servicer would not make such advances if the Master Servicer owned such REO Property or the Master Servicer determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance; provided, however, that the Master Servicer may make any such Servicing Advance without regard to recoverability if it is a necessary fee or expense incurred in connection with the defense or prosecution of legal proceedings.
(c) Unless Section 3.17(a)(i) applies, the Special Servicer shall contract with any Independent Contractor (if required by the REMIC Provisions for the REO Property to remain classified as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code) for the operation and management of any REO Property; provided that:
(i) the terms and conditions of any such contract may not be inconsistent herewith and shall reflect an agreement reached at arm’s length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund) shall be reasonable and customary in consideration of the nature and locality of the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, pay all costs and expenses incurred in connection with the operation and management of such REO Property, including, without limitation, those listed in Section 3.17(b) above, and remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations hereunder for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(d) Without limiting the generality of the foregoing, the Special Servicer shall not, with respect to any Administered REO Property:
(i) permit the Trust Fund to enter into, renew or extend any New Lease with respect to such Administered any REO PropertyProperty (other than, in each case, the REO Property related to the ▇.▇. ▇▇▇▇▇▇ 2006-LDP8 Serviced Mortgage Loan and the 2006-C27 Serviced Mortgage Loans), if the New Lease, Lease by its terms would will give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered any REO PropertyProperty (other than, in each case, the REO Property related to the ▇.▇. ▇▇▇▇▇▇ 2006-LDP8 Serviced Mortgage Loan and the 2006-C27 Serviced Mortgage Loans), other than the repair or maintenance thereof or the completion of a building or other improvement thereon, and then but only if more than 10% of to the construction of such building or other improvement was completed before default on the related Serviced Mortgage Loan became imminent, all within the meaning of extent provided in Section 856(e)(4)(B) of the Code; or
(iv) except as otherwise provided for in Section 3.17(a)(i) and (a)(ii) above, Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate such Administered Operate, any REO Property (other than, in each case, the REO Property related to the ▇.▇. ▇▇▇▇▇▇ 2006-LDP8 Serviced Mortgage Loan and the 2006-C27 Serviced Mortgage Loans) on any date more than 90 days after the related REO Acquisitionits Acquisition Date; unless, in any such case, the Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the Master Servicer, at the direction of the Special Servicer, and shall be reimbursable Servicer as a Servicing AdvanceAdvance unless nonrecoverable, in which case it shall be paid by the Master Servicer as an Additional Trust Fund Expense from amounts on deposit in the Certificate Account) to the effect that such action would will not cause such Administered REO Property to fail to qualify as "“foreclosure property" ” within the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time that it is held by a REMIC Poolthe Trust Fund, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor for the operation . Except as limited above in this Section 3.17 and management of any Administered REO Property; provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be expenses of the Trust Fund and, in the case of any Administered REO Property that relates to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such contract shall require, or shall be administered to require, that the Independent Contractor, in a timely manner, (A) pay out of related REO Revenues all costs and expenses incurred in connection with the operation and management of such Administered REO Property, including those listed in Section 3.17(b) above, and (B) except to the extent that such revenues are derived from any services rendered by the Independent Contractor to tenants of such Administered REO Property that are not customarily furnished or rendered in connection with the rental of real property (within the meaning of Section 1.856-4(b)(5) of the Treasury regulations or any successor provision), remit all related revenues collected (net of its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of such Administered REO Property; and
(v) ), the Special Servicer shall be obligated with respect thereto permitted to cause the Trust Fund to earn “net income from foreclosure property”, subject to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such Administered REO PropertyServicing Standard.
(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations under Section 3.16 and this Section 3.17 for indemnification of the Special Servicer by any such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. No agreement entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(f) Notwithstanding anything to the contrary, this Section 3.17 shall not apply to any Outside Administered REO Property.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2006-C28)