Servicing Compensation; Interest on Servicing Advances; Payment of Certain Expenses Sample Clauses

Servicing Compensation; Interest on Servicing Advances; Payment of Certain Expenses. Obligations of the Trustee Regarding Back-up Servicing Advances. (a) As compensation for its activities hereunder, the Master Servicer shall be entitled to receive the Master Servicing Fee with respect to each Mortgage Loan (including, without limitation, each Specially Serviced Mortgage Loan) and REO Loan. As to each Mortgage Loan and REO Loan, the Master Servicing Fee shall accrue from time to time at the applicable Master Servicing Fee Rate on the basis of the same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be changed or modified at any time following the Closing Date) and applicable law, and without giving effect to any Excess Interest that may accrue on any Hyper-Amortization Loan after its Anticipated Repayment Date. The Master Servicing Fee with respect to any Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in respect thereof. Earned but unpaid Master Servicing Fees shall be payable monthly, on a loan-by-loan basis, from payments of interest on each Mortgage Loan and REO Revenues allocable as interest on each REO Loan. The Master Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of any Mortgage Loan or REO Loan out of Insurance Proceeds or Liquidation Proceeds to the extent permitted by Section 3.05(a). The right to receive the Master Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the Master Servicer's responsibilities and obligations under this Agreement or except as provided in Section 3.22(d). The Master Servicer shall, monthly out of its Master Servicing Fee, pay to any Sub-Servicer retained by the Master Servicer such Sub-Servicer's sub-servicing fee (including, without limitation, any Primary Servicing Fee, if applicable), to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. (b) The Master Servicer shall be entitled to receive as additional servicing compensation: (i) Net Default Charges, assumption fees, modification fees and any similar fees (excluding Prepayment Premiums), in each case to the extent actually paid by a Mortgagor with respect to a Mortgage Loan that is not a Specially Serviced Mortgage Loan; (ii) charges for beneficiary statements or demands and amounts collected for checks returned for insufficient funds, to the extent actually paid by a Mortgagor with respect to any Mortgage Loan; (iii) any Prepayment Interest Excesses collected on the Mortgage Loans (but only to the extent such Prepayment Interest Excesses collected during any Collection Period are greater than all Prepayment Interest Shortfalls incurred in respect of the Mortgage Loans during such Collection Period); and (iv) interest or other income earned on deposits in the Investment Accounts maintained by the Master Servicer, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to any such Investment Account for each Collection Period and, in the case of a Servicing Account or Reserve Account, only to the extent such interest or other income is not required to be paid to any Mortgagor under applicable law or under the related Mortgage Loan documents); provided that with respect to the items of additional servicing compensation set forth in clauses (i) and (ii) above, the Master Servicer shall, in turn, pay the amounts described therein to the related Sub-Servicer to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. Notwithstanding anything to the contrary contained herein, any entity acting as Master Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Master Servicer, any or all of the items constituting additional servicing compensation contemplated by this Section 3.11(b). The Master Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any Sub-Servicer retained by it and the premiums for any blanket policy insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the Collection Account, and the Master Servicer shall not be entitled to reimbursement therefor except as expressly provided in this Agreement. (c) As compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Special Servicing Fee with respect to each Specially Serviced Mortgage Loan and each REO Loan. As to each Specially Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from time to time at the Special Servicing Fee Rate on the basis of the same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be modified at any time following the Closing Date) and applicable law, and without giving effect to any Excess Interest that may accrue on any Hyper- Amortization Loan after its Anticipated Repayment Date. The Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO Loan shall cease to accrue as of the date a Liquidation Event occurs in respect thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid Special Servicing Fees shall be payable monthly out of general collections on the Mortgage Loans and any REO Properties on deposit in the Collection Account pursuant to Section 3.05(a). As further compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Workout Fee with respect to each Corrected Mortgage Loan, unless the basis on which such Mortgage Loan became a Corrected Mortgage Loan was the remediation of a circumstance or condition relating to the Mortgage Loan Seller's or the Additional Warranting Party's obligation to repurchase such Mortgage Loan pursuant to Section 2.03. As to each Corrected Mortgage Loan, subject to the exceptions provided for in the preceding sentence, the Workout Fee shall be payable from, and shall be calculated by application of the Workout Fee Rate to, each collection of interest (other than Default Interest and, in the case of a Hyper-Amortization Loan after its Anticipated Repayment Date, Excess Interest) and principal received on such Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with respect to any Corrected Mortgage Loan will cease to be payable if a Servicing Transfer Event occurs with respect thereto or if the related Mortgaged Property becomes an REO Property; provided that a new Workout Fee will become payable if and when such Mortgage Loan again becomes a Corrected Mortgage Loan. If the Special Servicer is terminated other than for cause or resigns in accordance with clause (ii) of the first paragraph of Section 6.04, it shall retain the right to receive any and all Workout Fees payable in respect of Mortgage Loans that became Corrected Mortgage Loans during the period that it acted as Special Servicer and were still such at the time of such termination or resignation (and the successor Special Servicer shall not be entitled to any portion of such Workout Fees), in each case until the Workout Fee for any such Mortgage Loan ceases to be payable in accordance with the preceding sentence. As further compensation for its activities hereunder, the Special Servicer shall also be entitled to receive a Liquidation Fee with respect to each Specially Serviced Mortgage Loan or REO Property as to which it receives any full or discounted payoff from the related Mortgagor or any Liquidation Proceeds (other than in connection with the purchase of any such Specially Serviced Mortgage Loan or REO Property by the Special Servicer pursuant to Section 3.18, by the Master Servicer or the Majority Certificateholder of the Controlling Class pursuant to Section 3.18 or Section 9.01, or by the Mortgage Loan Seller or the Additional Warranting Party pursuant to Section 2.03 within 120 days of its discovery or notice (whichever occurred earlier) of the breach or Document Defect that gave rise to the repurchase obligation, and other than in connection with the condemnation or other governmental taking of a Mortgaged Property or REO Property). As to each such Specially Serviced Mortgage Loan or REO Property, the Liquidation Fee shall be payable from, and shall be calculated by application of the Liquidation Fee Rate to, such full or discounted payoff and/or such Liquidation Proceeds (excluding any portion of such payoff and/or proceeds that represents accrued but unpaid Excess Interest with respect to a Hyper-Amortization Loan after its Anticipated Repayment Date or accrued but unpaid Default Interest); provided that no Liquidation Fee will be payable with respect to any such Specially Serviced Mortgage Loan that becomes a Corrected Mortgage Loan; and provided, further, that (without limiting the Special Servicer's right to any Workout Fee that is properly payable therefrom), no Liquidation Fee will be payable from, or based upon the receipt of, Liquidation Proceeds collected as a result of any purchase of a Specially Serviced Mortgage Loan or REO Property described in the parenthetical to the first sentence of this paragraph or in connection with a condemnation or other governmental taking of a Mortgaged Property or REO Property. Notwithstanding anything to the contrary herein, a Liquidation Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid from the same proceeds on or with respect to such Mortgage Loan. The Special Servicer's right to receive the Special Servicing Fee, the Workout Fee and/or the Liquidation Fee may not be transferred in whole or in part except in connection with the transfer of all of the Special Servicer's responsibilities and obligations under this Agreement. (d) The Special Servicer shall be entitled to receive as additional special servicing compensation: (i) (A) to the extent allocable to the period when any Mortgage Loan is a Specially Serviced Mortgage Loan or to the extent allocable to an REO Loan, any Net Default Charges actually collected on such Mortgage Loan or REO Loan, as the case may be, and (B) any assumption fees, modification fees or similar fees (excluding Prepayment Premiums) actually collected on or with respect to Specially Serviced Mortgage Loans or REO Loans; and (ii) interest or other income earned on deposits in the REO Account, if established, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to the REO Account for each Collection Period). To the extent the amounts described in clause (i)(B) of the preceding paragraph are collected by the Master Servicer, the Master Servicer shall promptly pay such amounts to the Special Servicer and shall not be required to deposit such amounts in the Collection Account pursuant to Section 3.04(a). Additional servicing compensation to which the Master Servicer (or, if so provided by the applicable Sub-Servicing Agreement, any Sub-Servicer retained thereby) is entitled pursuant to Section 3.11(b) in the form of assumption fees, modification fees and any similar fees (excluding Prepayment Premiums) collected by the Special Servicer on Mortgage Loans that are not Specially Serviced Mortgage Loans or REO Loans, or in the form of charges for beneficiary statements or demands and amounts collected for checks returned for insufficient funds with respect to any Mortgage Loans (including, without limitation, Specially Serviced Mortgage Loans), shall be paid promptly to the Master Servicer by the Special Servicer. Notwithstanding anything to the contrary contained herein, any entity acting as Special Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Special Servicer, any or all of the items constituting additional special servicing compensation contemplated by this Section 3.11(d). The Special Servicer shall be required to pay out of its own funds all overhead, general and administrative expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any Sub-Servicers retained by it and the premiums for any blanket policy obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the Collection Account or the REO Account and the Master Servicer is not required to advance such expenses at the direction of the Special Servicer, and the Special Servicer shall not be entitled to reimbursement except as expressly provided in this Agreement. (e) If the Master Servicer or Special Servicer is required under this Agreement to make a Servicing Advance, but neither does so within 10 days after such Servicing Advance is required to be made, the Trustee shall, if it has actual knowledge of such failure on the part of the Master Servicer or Special Servicer, as the case may be, give notice of such failure, as applicable, to the Master Servicer and/or the Special Servicer, as appropriate. If such Servicing Advance is not made by the Master Servicer or the Special Servicer within three (3) Business Days after such notice then (subject to Section 3.11(g) below), the Trustee shall make such Servicing Advance. Any failure by the Master Servicer or the Special Servicer to make a Servicing Advance it is required to make hereunder shall constitute an Event of Default by the Master Servicer or the Special Servicer, as the case may be, subject to and as provided in Section 7.01(a). (f) As and to the extent permitted by Section 3.05(a), the Master Servicer, the Special Servicer (to the extent it has not already been reimbursed for any such Servicing Advance by the Master Servicer) and the Trustee shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each Servicing Advance made thereby (out of its own funds) for so long as such Servicing Advance is outstanding, and such interest will be paid: first, out of any Default Charges collected on or in respect of the related Mortgage Loan or REO Loan; and second, at any time coinciding with or following the reimbursement of such Servicing Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Collection Account. As and to the extent provided in Sections 3.03(a) and 3.05(a), the Master Servicer shall reimburse itself, the Special Servicer or the Trustee, as appropriate, for any Servicing Advance made thereby as soon as practicable after funds available for such purpose are deposited in the Collection Account or a Servicing Account. (g) Notwithstanding anything to the contrary set forth herein, none of the Master Servicer, the Special Servicer or the Trustee shall be required to make any Servicing Advance (including, without limitation, an Emergency Advance) that it determines in its reasonable, good faith judgment would constitute a Nonrecoverable Servicing Advance. In addition, Nonrecoverable Servicing Advances shall be reimbursable pursuant to Section 3.05(a)(vii) out of general collections on the Mortgage Pool on deposit in the Collection Account. The determination by the Master Servicer, the Special Servicer or, if applicable, the Trustee, that it has made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced by an Officer's Certificate delivered promptly to the Trustee (or, if applicable, retained thereby), the Sponsor and the Rating Agencies, setting forth the basis for such determination, together with (if such determination is prior to the liquidation of the related Mortgage Loan or REO Property) a copy of an Appraisal of the related Mortgaged Pro

Appears in 2 contracts

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

Servicing Compensation; Interest on Servicing Advances; Payment of Certain Expenses. Obligations of the Trustee Regarding Back-up Servicing Advances. (a) As compensation for its activities hereunder, the Master Servicer shall be entitled to receive the Master Servicing Fee with respect to each Mortgage Loan (including, without limitation, each Specially Serviced Mortgage Loan) and REO Loan. As to each such Mortgage Loan and REO Loan, the Master Servicing Fee shall accrue ~~from time to time~~ at the applicable Master Servicing Fee Rate on the basis of the same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be changed or modified at any time following the Original Closing Date) and applicable law~~, and without giving effect to any Excess Interest that may accrue on any Hyper-Amortization Loan after its Anticipated Repayment Date~~. The Master Servicing Fee with respect to any Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in respect thereof. Earned but unpaid Master Servicing Fees shall be payable monthly, on a loan-by-loan basis, from payments of interest on each Mortgage Loan and REO Revenues allocable as interest on each REO Loan. The Master Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of any Mortgage Loan or REO Loan out of Insurance Proceeds or Liquidation ~~Proceeds~~ Proceeds, to the extent permitted by Section 3.05(a). The right to receive the Master Servicing Fee may not be transferred in whole or in part except in accordance with the following paragraph, except in connection with the transfer of all of the Master Servicer's responsibilities and obligations under this Agreement or except as provided in Section 3.22(d). The Master Servicer shall, monthly out of its Master Servicing Fee, pay to any Sub-Servicer retained by the Master Servicer such Sub-Servicer's sub-servicing fee (including, without limitation, any Primary Servicing Fee, if applicable), to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. Midland may, at its option, sell or pledge the rights to the "Transferable Portion" (as hereinafter defined) of its Master Servicing Fee; provided that in the event of any resignation or termination of Midland (or any successor thereto) as Master Servicer, the rights of Midland or any transferee of such Transferable Portion shall terminate (except for the right to receive the Excess Portion (as defined below), if any, on any Distribution Date as set forth in the penultimate sentence of this paragraph). In the event of the appointment of a successor Master Servicer, the Trustee shall cooperate with Midland to attempt to appoint a successor (which may be the Trustee) which, subject to the Trustee's satisfaction as to quality of servicing and the best interests of Certificateholders and the requirements of Article VII of this Agreement, will perform the services of the Master Servicer for payment of an amount (the "Successor Servicer Retained Fee") less than the full Master Servicing Fee expressed as a fixed number of basis points such that the Transferable Portion is reduced only to the extent reasonably necessary (in the sole discretion of the Trustee) to provide market rate compensation (except that the Transferable Portion shall be reduced to zero during any period for which the Trustee serves as successor servicer hereunder by reason of a default by the Master Servicer). If, and only if, the successor Master Servicer shall have so agreed to perform such services for less than the full Master Servicing Fee, then while such successor Master Servicer will be entitled to receive the full Master Servicing Fee, it shall pay the excess of the Transferable Portion (which would otherwise be payable) over the Successor Servicer Retained Fee on each Distribution Date (any such excess, the "Excess Portion") to Midland or any transferee of the Transferable Portion, as applicable, at such time and to the extent the Master Servicer is entitled to receive payment of the Master Servicing Fees under this Agreement, notwithstanding any termination of Midland under this Agreement. If the successor Master Servicer shall not have agreed to perform such services for such lesser amount, the rights of Midland or any transferee to the Transferable Portion shall terminate. The "Transferable Portion" of the Master Servicing Fee is the amount by which the Master Servicing Fee exceeds the sum of (i) the Primary Servicing Fee, (ii) the Standby Fee and (iii) the amount of the related Master Servicing Fee calculated using a rate of 0.02% per annum. (b) The Master Servicer shall be entitled to receive as additional servicing compensation: (i) ~~Net~~ Default Charges, assumption fees, modification ~~fees~~ fees, charges for beneficiary statements or demands and any similar fees (excluding Prepayment Premiums), in each case to the extent actually paid by a Mortgagor with respect to a Mortgage Loan that is not a Specially Serviced Mortgage Loan; (ii) ~~charges for beneficiary statements or demands and~~ amounts collected for checks returned for insufficient funds, to the extent actually paid by a Mortgagor with respect to any Mortgage Loan; (iii) any Prepayment Interest Excesses collected on the Mortgage Loans (but only to the extent such Prepayment Interest Excesses collected during any Collection Period are greater than all Prepayment Interest Shortfalls incurred in respect of the Mortgage Loans during such Collection Period); andLoans; (iv) interest or other income earned on deposits in the ~~Investment Accounts maintained by the Master Servicer~~Certificate Account, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to ~~any such Investment~~ the Certificate Account for each Collection ~~Period~~ Period); and~~, in the case of a Servicing Account or Reserve Account, only~~ (v) to the extent ~~such interest or other income is~~ not required to be paid to any Mortgagor under applicable law or under the related ~~Mortgage Loan documents)~~Mortgage, any interest or other income earned on deposits in the Servicing Accounts maintained by the Master Servicer; provided that with respect to the items of additional servicing compensation set forth in clauses (i) and (ii) above, the Master Servicer shall, in turn, pay the amounts described therein to the related Sub-Servicer to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. Notwithstanding anything to the contrary contained herein, any entity acting as Master Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Master Servicer, any or all of the items constituting additional servicing compensation contemplated by this Section 3.11(b). The Master Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any Sub-Servicer retained by it and the premiums for any blanket policy insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the ~~Collection~~ Certificate Account, and the Master Servicer shall not be entitled to reimbursement therefor except as expressly provided in this Agreement. (c) As compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Special Servicing Fee with respect to each Specially Serviced Mortgage Loan and each REO Loan. As to each Specially Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from time to time at the Special Servicing Fee Rate on the basis of the same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be modified at any time following the Original Closing Date) and applicable law~~, and without giving effect to any Excess Interest that may accrue on any Hyper- Amortization Loan after its Anticipated Repayment Date~~. The Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO Loan shall cease to accrue as of the date a Liquidation Event occurs in respect thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid Special Servicing Fees shall be payable monthly out of general collections on the Mortgage Loans and any REO Properties on deposit in the ~~Collection~~ Certificate Account pursuant to Section 3.05(a). As further compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Standby Fee with respect to each Mortgage Loan and each REO Loan. As to each Mortgage Loan and each REO Loan, the Standby Fee shall accrue from time to time at the Standby Fee Rate on the basis of the same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be modified at any time following the Original Closing Date) and applicable law. Standby Fees shall be payable monthly by the Master Servicer on a loan-by-loan basis out of its Master Servicing Fees received with respect to each Mortgage Loan and each REO Loan. As further compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Workout Fee with respect to each Corrected Mortgage Loan, unless the basis on which such Mortgage Loan became a Corrected Mortgage Loan was the remediation of a circumstance or condition relating to the Mortgage Loan Seller's or the Additional Warranting Party's obligation to repurchase such Mortgage Loan pursuant to Section 2.03, in which case, if such Mortgage Loan is repurchased within the 120-day period described in Section 2.03(a), no Workout Fee will be payable from or based upon the receipt of, any Purchase Price paid by the Mortgage Loan Seller or the Additional Warranting Party in satisfaction of such repurchase obligation. Furthermore, no Workout Fees will be payable from or based upon the receipt of any Liquidation Proceeds paid by any Majority Certificateholder of the Controlling Class or the Master Servicer in connection with the purchase of all the Mortgage Loans and any REO Properties in the Trust Fund pursuant to Section 9.01 hereof. As to each Corrected Mortgage Loan, subject to the exceptions provided for in the two preceding ~~sentence~~sentences, the Workout Fee shall be payable from, and shall be calculated by application of the Workout Fee Rate to, each collection of interest (other than Default ~~Interest and, in the case of a Hyper-Amortization Loan after its Anticipated Repayment Date, Excess~~ Interest) and principal received on such Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with respect to any Corrected Mortgage Loan will cease to be payable if a Servicing Transfer Event occurs with respect thereto or if the related Mortgaged Property becomes an REO Property; provided that a new Workout Fee will become payable if and when such Mortgage Loan again becomes a Corrected Mortgage Loan. If the Special Servicer is terminated other than for cause or resigns in accordance with clause (ii) of the first paragraph of Section 6.04, it shall retain the right to receive any and all Workout Fees payable in respect of Mortgage Loans that became Corrected Mortgage Loans during the period that it acted as Special Servicer and were still such at the time of such termination or resignation (and the successor Special Servicer shall not be entitled to any portion of such Workout Fees), in each case until the Workout Fee for any such Mortgage Loan ceases to be payable in accordance with the preceding sentence. As further compensation for its activities hereunder, the Special Servicer shall also be entitled to receive a Liquidation Fee with respect to each Specially Serviced Mortgage Loan or REO Property as to which it receives any full or discounted payoff from the related Mortgagor or any Liquidation Proceeds (other than in connection with the purchase of any such Specially Serviced Mortgage Loan or REO Property by the Special Servicer pursuant to Section 3.18, by the Master Servicer or the Majority Certificateholder of the Controlling Class pursuant to Section 3.18 or Section 9.01, or by the Mortgage Loan Seller or the Additional Warranting Party pursuant to Section 2.03 within 120 days of its discovery or notice ~~(whichever occurred earlier)~~ of the breach or Document Defect that gave rise to the repurchase obligation, and other than in connection with the condemnation or other governmental taking of a Mortgaged Property or REO Property). As to each such Specially Serviced Mortgage Loan or REO Property, the Liquidation Fee shall be payable from, and shall be calculated by application of the Liquidation Fee Rate to, such full or discounted payoff and/or ~~such~~ Liquidation Proceeds (excluding any portion of such payoff and/or proceeds that represents ~~accrued but unpaid Excess Interest with respect to a Hyper-Amortization Loan after its Anticipated Repayment Date or~~ accrued but unpaid Default Interest); provided that no Liquidation Fee will be payable with respect to any such Specially Serviced Mortgage Loan that becomes a Corrected Mortgage Loan; and provided, further, that (without limiting the Special Servicer's right to any Workout Fee that is properly payable therefrom), no Liquidation Fee will be payable from, or based upon the receipt of, Liquidation Proceeds collected as a result of any purchase of a Specially Serviced Mortgage Loan or REO Property described in the parenthetical to the first sentence of this paragraph or in connection with a condemnation or other governmental taking of a Mortgaged Property or REO Property. Notwithstanding anything to the contrary herein, a Liquidation Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid from the same proceeds on or with respect to such Mortgage Loan. The Special Servicer's right to receive the Special Servicing Fee, the Standby Fee, the Workout Fee and/or the Liquidation Fee may not be transferred in whole or in part except in connection with the transfer of all of the Special Servicer's responsibilities and obligations under this Agreement. (d) The Special Servicer shall be entitled to receive as additional special servicing compensation: (i) (A) to the extent allocable to the period when any Mortgage Loan is a Specially Serviced Mortgage Loan or to the extent allocable to an REO Loan, any Net Default Charges actually collected on such Mortgage Loan or REO Loan, as the case may be, and (B) ~~any~~ assumption fees, modification ~~fees~~ fees, charges for beneficiary statements or demands and any similar fees (excluding Prepayment Premiums) actually collected on or with respect to Specially Serviced Mortgage Loans or REO Loans; and (ii) interest or other income earned on deposits in the REO Account, if established, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to the REO Account for each Collection Period). To the extent the amounts described in clause (i)(B) of the preceding paragraph are collected by the Master Servicer, the Master Servicer shall promptly pay such amounts to the Special Servicer and shall not be required to deposit such amounts in the ~~Collection~~ Certificate Account pursuant to Section 3.04(a). Additional servicing compensation to which the Master Servicer (or, if so provided by the applicable Sub-Servicing Agreement, any Sub-Servicer retained thereby) is entitled pursuant to Section 3.11(b) in the form of assumption fees, modification ~~fees~~ fees, charges for beneficiary statements or demands and any similar fees (excluding Prepayment Premiums) collected by the Special Servicer on Mortgage Loans that are not Specially Serviced Mortgage Loans or REO Loans, or in the form of ~~charges for beneficiary statements or demands and~~ amounts collected for checks returned for insufficient funds with respect to any Mortgage Loans (including, without limitation, Specially Serviced Mortgage Loans), shall be paid promptly to the Master Servicer by the Special Servicer. Notwithstanding anything to the contrary contained herein, any entity acting as Special Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Special Servicer, any or all of the items constituting additional special servicing compensation contemplated by this Section 3.11(d). The Special Servicer shall be required to pay out of its own funds all overhead, general and administrative expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any Sub-Servicers retained by it and the premiums for any blanket policy obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the ~~Collection~~ Certificate Account or the REO Account and the Master Servicer is not required to advance such expenses at the direction of the Special Servicer, and the Special Servicer shall not be entitled to reimbursement except as expressly provided in this Agreement. (e) If the Master Servicer or Special Servicer is required under this Agreement to make a Servicing Advance, but neither does so within 10 15 days after such Servicing Advance is required to be made, the Trustee shall, if it has actual knowledge of such failure on the part of the Master Servicer or Special Servicer, as the case may be, give notice of such failure, as applicable, to the Master Servicer and/or the Special Servicer~~, as appropriate~~. If such Servicing Advance is not made by the Master Servicer or the Special Servicer within ~~three (3)~~ one Business ~~Days~~ Day after such notice then (subject to Section 3.11(g) below), the Trustee shall make such Servicing Advance. Any failure by the Master Servicer or the Special Servicer to make a Servicing Advance it is required to make hereunder shall constitute an Event of Default by the Master Servicer or the Special Servicer, as the case may be, subject to and as provided in Section 7.01(a). (f) As and to the extent permitted by Section 3.05(a), the Master Servicer, the Special Servicer (to the extent it has not already been reimbursed for any such Servicing Advance by the Master Servicer) and the Trustee shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each Servicing Advance made thereby (out of its own funds) for so long as such Servicing Advance is outstanding, and such interest will be paid: first, out of any Default Charges collected on or in respect of the related Mortgage Loan or REO Loan; and second, at any time coinciding with or following the reimbursement of such Servicing Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Collection Account. As and to the extent provided in Sections 3.03(a) and 3.05(a), the Master Servicer shall reimburse itself, the Special Servicer or the Trustee, as appropriate, for any Servicing Advance made thereby as soon as practicable after funds available for such purpose are deposited in the Collection Account or a Servicing Account. (g) Notwithstanding anything to the contrary set forth herein, none of the Master Servicer, the Special Servicer or the Trustee shall be required to make any Servicing Advance (including, without limitation, an Emergency Advance) that it determines in its reasonable, good faith judgment would constitute a Nonrecoverable Servicing Advance. In addition, Nonrecoverable Servicing Advances shall be reimbursable pursuant to Section 3.05(a)(vii) out of general collections on the Mortgage Pool on deposit in the Collection Account. The determination by the Master Servicer, the Special Servicer or, if applicable, the Trustee, that it has made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced by an Officer's Certificate delivered promptly to the Trustee (or, if applicable, retained thereby), the Sponsor and the Rating Agencies, setting forth the basis for such determination, together with (if such determination is prior to the liquidation of the related Mortgage Loan or REO Property) a copy of an Appraisal of the related Mortgaged Pro

Appears in 2 contracts

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

Servicing Compensation; Interest on Servicing Advances; Payment of Certain Expenses. Obligations of the Trustee ~~Regarding~~ regarding Back-up Servicing Advances. (a) As compensation for its activities hereunder, the Master Servicer shall be entitled to receive the Master Servicing Fee with respect to each Mortgage Loan (including, without limitation, each Specially Serviced Mortgage Loan) and REO Loan. As to each such Mortgage Loan and REO Loan, the Master Servicing Fee shall accrue ~~from time to time~~ at the ~~applicable~~ Master Servicing Fee Rate on the basis of the same principal amount and for the same ~~number of days~~ period respecting which ~~any~~ the related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be changed or modified at any time following the Closing Date) and applicable law, and without giving effect to any Excess Interest that may accrue on any Hyper-Amortization Loan after its Anticipated Repayment Datecomputed. The ~~Master~~ Servicing Fee with respect to any Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in respect thereof. Earned but unpaid Master Servicing Fees shall be payable monthly, on a loan-by-loan basis, from payments of interest on each Mortgage Loan and REO Revenues allocable as interest on each REO Loan. The Master Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of any Mortgage Loan or REO Loan out of Insurance Proceeds or Liquidation ~~Proceeds~~ Proceeds, to the extent permitted by Section 3.05(a). The right to receive the Master Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the Master Servicer's responsibilities and obligations under this Agreement or except as provided in Section 3.22(d). The Master Servicer shall, monthly out of its Master Servicing Fee, pay to any Sub-Servicer retained by the Master Servicer such Sub-Servicer's sub-servicing fee (including, without limitation, any Primary Servicing Fee, if applicable), to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. (b) The Master Servicer shall also be entitled to ~~receive as~~ additional servicing ~~compensation:~~ compensation in the form of: (i) ~~Net Default Charges, assumption fees, modification fees and~~ any ~~similar fees~~ Prepayment Interest Excesses; (~~excluding Prepayment Premiums), in each case~~ ii) to the extent ~~actually paid by a Mortgagor with respect~~ allocable to a the period when the related Mortgage Loan ~~that is~~ did not constitute a Specially Serviced Mortgage ~~Loan; (ii)~~ Loan or REO Property, any Net Penalty Charges or any similar charges for beneficiary statements or demands and amounts collected for checks returned for insufficient funds, to the extent actually paid by a Mortgagor with respect to any Mortgage Loan; (iii) any Prepayment Interest Excesses collected on the Mortgage ~~Loans~~ Loans; (but only to the extent such Prepayment Interest Excesses collected during any Collection Period are greater than all Prepayment Interest Shortfalls incurred in respect of the Mortgage Loans during such Collection Period); and (iviii) interest or other income earned on deposits in the ~~Investment Accounts maintained by the Master Servicer~~Collection Account, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to ~~any such Investment~~ the Collection Account for each Collection ~~Period and, in the case of a Servicing Account or Reserve Account, only~~ Period); and (iv) to the extent ~~such interest or other income is~~ not required to be paid to any Mortgagor under applicable law or under the related Mortgage Loan documents); provided that with respect to the items of additional servicing compensation set forth in clauses (i) and (ii) above, the Master Servicer shall, in turn, pay the amounts described therein to the related Sub-Servicer to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. Notwithstanding anything to the contrary contained hereinMortgage, any ~~entity acting as Master Servicer shall be entitled to assign to an Affiliate~~ interest or other income earned on deposits in the right to receive, for so long as (but only for so long as) such entity continues to act as Master Servicer, any or all of the items constituting additional servicing compensation contemplated by this Section 3.11(b)Servicing Accounts maintained thereby. The Master Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any of Sub-~~Servicer~~ Servicers retained by it and the premiums for any blanket policy insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the Collection Account, and the Master Servicer shall not be entitled to reimbursement therefor except as expressly provided in this Agreement. (c) As compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Property Servicing Fee with respect to each Mortgage Loan (including, without limitation, each Specially Serviced Mortgage Loan) and REO Loan. As to each such Mortgage Loan and REO Loan, the Property Servicing Fee shall accrue from time to time at the Property Servicing Fee Rate on the basis of the same principal amount and for the same period respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed. The Property Servicing Fee with respect to any Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in respect thereof. Earned but unpaid Property Servicing Fees shall be payable monthly out of general collections on the Mortgage Loans and any REO Properties on deposit in the Collection Account pursuant to Section 3.05(a). As further compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Special Servicing Fee with respect to each Specially Serviced Mortgage Loan and each REO Loan. As to each Specially Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from time to time at the Special Servicing Fee Rate on the basis of the same principal amount and for the same ~~number of days~~ period respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be modified at any time following the Closing Date) and applicable law, and without giving effect to any Excess Interest that may accrue on any Hyper- Amortization Loan after its Anticipated Repayment Datecomputed. The Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO Loan shall cease to accrue as of the date a Liquidation Event occurs in respect thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid Special Servicing Fees shall be payable monthly out of general collections on the Mortgage Loans and any REO Properties on deposit in the Collection Account pursuant to Section 3.05(a). As further compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Workout Fee with respect to each Corrected ~~Mortgage~~ Loan, unless the basis on which such Mortgage Loan became a Corrected Mortgage Loan was the remediation of a circumstance or condition relating to the Mortgage Loan Seller's or the Additional Warranting Party's obligation to repurchase such Mortgage Loan pursuant to Section 2.03. As to each Corrected Mortgage Loan, ~~subject to the exceptions provided for in the preceding sentence,~~ the Workout Fee shall be ~~payable from~~payable, subject to the proviso to clause (e) of the definition of "Specially Serviced Mortgage Loan",out of, and shall be calculated by application of the Workout Fee Rate to, each collection of interest and principal (~~other than Default Interest and~~net of related unpaid or unreimbursed Master Servicing Fees, ~~in the case~~ Property Servicing Fees, Special Servicing Fees and Advances), together with any collection of a ~~Hyper-Amortization Loan after its Anticipated Repayment Date~~Prepayment Premium or Yield Maintenance Premium, ~~Excess Interest) and principal~~ received on such Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with respect to any Corrected Mortgage Loan will cease to be payable if a Servicing Transfer Event occurs with respect thereto or if the related Mortgaged Property becomes an REO Property; provided that a new Workout Fee ~~will~~ would become payable if and when such Mortgage Loan again ~~becomes~~ became a Corrected Mortgage Loan. If the Special Servicer is terminated other than for cause or resigns in accordance with ~~clause (ii) of the first paragraph of~~ Section 6.04, it shall retain the right to receive any and all Workout Fees payable in respect of Mortgage Loans that became Corrected Mortgage Loans during the period that it acted as Special Servicer and were still such at the time of such termination or resignation (and the successor Special Servicer shall not be entitled to any portion of such Workout Fees), in each case until the Workout Fee for any such Mortgage Loan ceases to be payable in accordance with the preceding sentence. As further compensation for its activities hereunder, the Special Servicer shall also be entitled to receive a Liquidation Fee with respect to each Specially Serviced Mortgage Loan or REO Property as to which it receives any full or discounted payoff from the related Mortgagor or any Liquidation Proceeds or Insurance Proceeds (other than in connection with the purchase of any such Specially Serviced Mortgage Loan or REO Property by the Special Servicer ~~pursuant to Section 3.18, by~~ or the Master Servicer ~~or the Majority Certificateholder of the Controlling Class~~ pursuant to Section 3.18 or Section ~~9.01,~~ 9.01 or by the Mortgage Loan Seller ~~or the Additional Warranting Party~~ pursuant to ~~Section 2.03 within 120 days of its discovery or notice (whichever occurred earlier) of~~ the ~~breach or Document Defect that gave rise to the repurchase obligation, and other than in connection with the condemnation or other governmental taking of a Mortgaged Property or REO Property~~Mortgage Loan Purchase Agreement). As to each such Specially Serviced Mortgage Loan or REO Property, the Liquidation Fee shall be ~~payable from~~payable, subject to the proviso to clause (e) of the definition of "Specially Serviced Mortgage Loan", out of, and shall be calculated by application of the Liquidation Fee Rate to, such full or discounted ~~payoff and/or such~~ payoff, Liquidation Proceeds ~~(excluding~~ and/or Insurance Proceeds, in each case net of any portion of such ~~payoff~~ payment or proceeds payable or reimbursable to the Master Servicer or the Special Servicer to cover related unpaid or unreimbursed Master Servicing Fees, Property Servicing Fees, Special Servicing Fees and/or ~~proceeds that represents accrued but unpaid Excess Interest with respect to a Hyper-Amortization Loan after its Anticipated Repayment Date or accrued but unpaid Default Interest); provided that no~~ Advances. The Liquidation Fee ~~will be payable~~ with respect to any such Specially Serviced Mortgage Loan ~~that~~ will not be payable if such Mortgage Loan becomes a Corrected Mortgage Loan~~; and provided, further, that (without limiting~~ . Notwithstanding anything herein to the ~~Special Servicer's right to any Workout Fee that is properly payable therefrom)~~contrary, no Liquidation Fee will be payable ~~from~~in connection with the receipt of, or ~~based upon the receipt~~ out of, Liquidation Proceeds collected as a result of ~~any~~ the purchase of a any Specially Serviced Mortgage Loan or REO Property described in the parenthetical to the first sentence of this paragraph or in connection with a condemnation or other governmental taking of a Mortgaged Property or REO Property. Notwithstanding anything to the contrary herein, a Liquidation Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid from the same proceeds on or with respect to such Mortgage Loanparagraph. The Special Servicer's right to receive the Property Servicing Fee, the Special Servicing Fee, the Workout Fee and/or the Liquidation Fee may not be transferred in whole or in part except in connection with the transfer of all of the Special Servicer's responsibilities and obligations under this Agreement. (d) ~~The Special Servicer shall be entitled to receive as additional special~~ Additional servicing ~~compensation: (i) (A) to~~ compensation in the ~~extent allocable to the period when~~ form of ____ % of any ~~Mortgage Loan is a Specially Serviced Mortgage Loan or to the extent allocable to an REO Loan, any Net Default Charges actually collected on such Mortgage Loan or REO Loan, as the case may be,~~ modification fees and ~~(B)~~ ___% of any assumption ~~fees, modification~~ fees ~~or similar fees (excluding Prepayment Premiums) actually collected~~ received on or with respect to Mortgage Loans other than Specially Serviced Mortgage Loans and any modification fees and assumption fees received on or ~~REO~~ with respect to any Specially Serviced Mortgage Loans~~; and~~ , may be retained by the Special Servicer (~~ii) interest or other income earned on deposits in the REO Account, if established, in accordance with Section 3.06(b) (but only~~ to the extent of collected by the ~~Net Investment Earnings~~Special Servicer), ~~if any, with respect~~ or shall be promptly paid to the ~~REO Account for each Collection Period). To~~ Special Servicer by the Master Servicer (to the extent ~~the amounts described in clause (i)(B) of the preceding paragraph are~~ collected by the Master Servicer), ~~the Master Servicer shall promptly pay such amounts to the Special Servicer~~ and in any event shall not be required to ~~deposit such amounts~~ be deposited in the Collection Account pursuant to Section 3.04(a). Additional servicing compensation to which the Master Servicer (or, if so provided by the applicable Sub-Servicing Agreement, any Sub-Servicer retained thereby) is entitled pursuant to Section 3.11(b) in the form of assumption fees, modification fees and any similar fees (excluding Prepayment Premiums) collected by the The Special Servicer shall also be entitled to any Net Penalty Charges received on the Mortgage Loans that are not ~~Specially Serviced Mortgage Loans or REO Loans~~required to be paid as additional servicing compensation to the Master Servicer. To the extent collected by the Special Servicer, or additional servicing compensation in the form of ~~charges for beneficiary statements or demands and amounts collected for checks returned for insufficient funds with respect~~ any Net Penalty Charges that the Master Servicer is entitled to ~~any Mortgage Loans (including, without limitation, Specially Serviced Mortgage Loans),~~ as additional servicing compensation shall be paid promptly by the Special Servicer to the Master ~~Servicer by the Special~~ Servicer. Notwithstanding anything to the contrary contained herein, any entity acting as Special Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Special Servicer, any or all of the items constituting additional special servicing compensation contemplated by this Section 3.11(d). The Special Servicer shall be required to pay out of its own funds all ~~overhead, general and administrative~~ expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any of Sub-Servicers retained by it and the premiums for any blanket policy obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the Collection Account or the REO ~~Account and the Master Servicer is not required to advance such expenses at the direction of the Special Servicer~~Account, and the Special Servicer shall not be entitled to reimbursement except as expressly provided in this Agreement. (e) If the Master Servicer or Special Servicer is required under this Agreement to make a Servicing Advance, but neither does so within 10 15 days after such ~~Servicing~~ Advance is required to be made, the Trustee shall, if it has actual knowledge of such failure on the part of the Master Servicer or Special Servicer, as the case may be, give notice of such failure, as applicable, to the Master Servicer ~~and/or~~ and the Special Servicer~~, as appropriate~~. If such ~~Servicing~~ Advance is not made by the Master Servicer or the Special Servicer within three ~~(3) Business Days~~ days after such notice then (subject to Section 3.11(g) below), the Trustee shall make such ~~Servicing~~ Advance. Any failure by the Master Servicer or the Special Servicer to make a Servicing Advance it is required to make hereunder shall constitute an Event of Default by the Master Servicer or the Special Servicer, as the case may be, subject to and as provided in Section ~~7.01(a~~7.01(a)(iv) and Section 7.01(a)(v), respectively. (f) ~~As and to the extent permitted by Section 3.05(a), the Master Servicer, the~~ The Special Servicer ~~(to the extent it has not already been reimbursed for any such Servicing Advance by the Master Servicer)~~ and the Trustee shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each Servicing Advance made thereby ~~(out of its own funds)~~ for so long as such Servicing Advance is outstanding, ~~and~~ such interest ~~will~~ to be ~~paid~~payable: first, out of ~~any Default~~ Penalty Charges collected on ~~or in respect of~~ the ~~related~~ Mortgage Loan or REO ~~Loan~~Loan as to which such Advance relates; and ~~second~~then, ~~at any time coinciding with or following~~ to the ~~reimbursement of~~ extent such ~~Servicing Advance~~Penalty Charges are insufficient, and only after such Advance has been reimbursed pursuant to this Agreement, out of general collections on the Mortgage Loans and ~~any~~ REO Properties on deposit in the Collection Account. ~~As and to the extent provided in Sections 3.03(a) and 3.05(a), the~~ The Master Servicer shall reimburse itself, the Special Servicer or the Trustee, as appropriate, for any Servicing Advance made thereby as soon as practicable after funds available for such purpose are deposited in the Collection ~~Account or a Servicing~~ Account. (g) Notwithstanding anything to the contrary set forth herein, none of the Master Servicer, the Special Servicer or the Trustee shall be required to make any Servicing Advance ~~(including, without limitation, an Emergency Advance)~~ that it determines in its ~~reasonable,~~ reasonable good faith judgment would constitute a Nonrecoverable Servicing Advance. ~~In addition, Nonrecoverable~~ A determination by any Person with an obligation hereunder to make Servicing Advances shall be reimbursable pursuant to Section 3.05(a)(vii) out of general collections on the Mortgage Pool on deposit in the Collection Account. The determination by the Master Servicer, the Special Servicer or, if applicable, the Trustee, that it has made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance, shall be made by such Person in its reasonable good faith judgment and shall be evidenced by an Officer's Certificate delivered promptly to the Trustee, the Depositor, and each Holder of a Class B-3 Certificate, a Class B-4 Certificate or a Class C Certificate, setting forth the basis for such determination, together with a copy of an Appraisal of the related Mortgaged Property or REO Property performed within the twelve months preceding such determination, and further accompanied by any other information, including engineers' reports, environmental surveys or similar reports, that such Person may have obtained and that support such determination. Notwithstanding the foregoing, the Trustee shall be entitled to conclusively rely on any determination of nonrecoverability that may have been made by the Master Servicer or the Special Servicer with respect to a particular Servicing Advance, and the Master Servicer shall be entitled to conclusively rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a particular Servicing Advance. A copy of any such Officer's Certificate (and accompanying information) of the Master Servicer shall also be delivered promptly to the Special Servicer, a copy of any such Officer's Certificate (and accompanying information) of the Special Servicer shall also be promptly delivered to the Master Servicer, and a copy of any such Officer's Certificate (and accompanying information) of the Trustee shall also be promptly delivered to the Master Servicer and the Special Servicer. (h) Notwithstanding anything to the contrary set forth herein, any of the Master Servicer, the Special Servicer or the Trustee, as applicable, may, in its sole discretion, make any Nonrecoverable Servicing Advance if it has determined in its reasonable good faith judgment that making such Nonrecoverable Servicing Advance is in the best interests of the Certificateholders, as evidenced by an Officer's Certificate delivered promptly to the Trustee (~~or, if applicable, retained thereby~~unless it is the Person making such Advance), the ~~Sponsor~~ Depositor, and ~~the Rating Agencies~~each Holder of a Class B-3 Certificate, a Class B-4 Certificate or a Class C Certificate, setting forth the basis for such determination and accompanied by any information that such Person may have obtained that supports such determination~~, together with~~ . A copy of any such Officer's Certificate (~~if such determination is prior~~ and accompanying information) of the Master Servicer shall also be delivered promptly to the ~~liquidation of the related Mortgage Loan or REO Property)~~ Special Servicer, a copy of ~~an Appraisal~~ any such Officer's Certificate (and accompanying information) of the ~~related Mortgaged Pro~~Special Servicer shall also be promptly delivered to the Master Servicer and a copy of any such Officer's Certificate (and accompanying information) of the Trustee shall also be promptly delivered to the Master Servicer, the Special Servicer and the Depositor.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Criimi Mae CMBS Corp)

Servicing Compensation; Interest on Servicing Advances; Payment of Certain Expenses. Obligations of the Trustee Regarding Back-up Servicing Advances. (a) As compensation for its activities hereunder, the Master Servicer shall be entitled to receive the Master Servicing Fee with respect to each ~~Mortgage~~ Loan (~~including, without limitation,~~ including each Specially Serviced ~~Mortgage~~ Loan) and each related REO Serviced Loan. As to each ~~Mortgage~~ such Loan and REO Serviced Loan, for each calendar month (commencing with March 2006) or any applicable portion thereof, the Master Servicing Fee shall accrue ~~from time to time~~ at the ~~applicable~~ related Master Servicing Fee Rate on the ~~basis of the~~ same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be changed or modified at any time following the Closing Date) and applicable lawamount, and without giving effect to any Excess Interest that may accrue on any ~~Hyper-Amortization~~ ARD Loan after its Anticipated Repayment Date, as interest accrues from time to time during such calendar month (or portion thereof) on such Loan or is deemed to accrue from time to time during such calendar month (or portion thereof) on such REO Serviced Loan, as the case may be, and shall be calculated on the same Interest Accrual Basis as is applicable for such Loan or REO Serviced Loan, as the case may be. The Master Servicing Fee with respect to any ~~Mortgage~~ Loan or REO Serviced Loan shall cease to accrue if a Liquidation Event (or with respect to a Non-Serviced Mortgage Loan, a similar event occurs under the related Non-Serviced Mortgage Loan Pooling Agreement) occurs in respect thereof. ~~Earned but unpaid~~ Master Servicing Fees earned with respect to any such Loan or REO Serviced Loan shall be payable ~~monthly, on a loan-by-loan basis,~~ monthly from payments of interest on ~~each Mortgage~~ such Loan ~~and~~ or REO Revenues allocable as interest on ~~each~~ such REO Serviced Loan, as the case may be. The Master Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of any ~~Mortgage~~ Loan or REO Serviced Loan out of the portion of any related Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds to allocable as interest on such Loan or REO Serviced Loan, as the ~~extent permitted by Section 3.05(a)~~case may be. The right to receive the Master Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the Master Servicer's responsibilities and obligations under this Agreement or and except as otherwise expressly provided in ~~Section 3.22(d)~~the following paragraph. ~~The Master Servicer shall~~In the case of the Torre Mayor Pari Passu Note A-2 Mortgage Loan, ~~monthly out of its~~ the Master Servicing ~~Fee, pay to any Sub-Servicer retained by the Master Servicer such Sub-Servicer's sub-servicing fee (including, without limitation, any Primary Servicing Fee, if applicable),~~ Fee with respect to the ~~extent such Sub-Servicer is entitled thereto under~~ Torre Mayor Pari Passu Note A-2 Mortgage Loan and additional servicing compensation with respect to the ~~applicable Sub-Servicing Agreement~~Torre Mayor Pari Passu Note A-2 Mortgage Loan shall be an expense of the Torre Mayor Loan REMIC. (b) The Master Servicer shall be entitled to receive the following items as additional servicing compensation:, which shall be paid prior to remittance of such amounts, if any, which are required to be paid to any Companion Loan Holder under any Intercreditor Agreement (the following items, collectively, "Additional Master Servicing Compensation"): (i) any and all Net Default Charges, ~~assumption fees~~Net Assumption Application Fees, ~~modification~~ Net Modification Application Fees and earnout fees collected with respect to a Performing Serviced Loan; (ii) 50% of any and ~~any similar fees (excluding Prepayment Premiums), in each case to the extent~~ all Net Assumption Fees actually paid by a Mortgagor with respect to a ~~Mortgage Loan that is not a Specially~~ Performing Serviced ~~Mortgage~~ Loan; (iiiii) ~~charges for beneficiary statements or demands~~ 50% of any and ~~amounts collected for checks returned for insufficient funds~~all Net Modification Fees, ~~to the extent~~ extension fees, consent fees and waiver fees actually paid by a Mortgagor with respect to a Performing Serviced Loan for which Special Servicer approval is required; (iv) any ~~Mortgage~~ and all charges for beneficiary statements or demands, amounts collected for checks returned for insufficient funds and other loan processing fees actually paid by a Mortgagor with respect to a Performing Serviced Loan and, in the case of checks returned for insufficient funds, with respect to a Specially Serviced Loan; (~~iii~~v) any and all Prepayment Interest ~~Excesses~~ Excess collected on the Mortgage Loans (~~but only to the extent such Prepayment Interest Excesses collected during~~ other than any ~~Collection Period are greater than all Prepayment Interest Shortfalls incurred in respect of the~~ Non-Serviced Mortgage ~~Loans during such Collection Period~~Loan)~~; and~~; (ivvi) interest or other income earned on deposits in the Investment Accounts maintained by the Master Servicer, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to any such Investment Account for each Collection Period and, further, in the case of a Servicing Account or Reserve Account, only to the extent such interest or other income is not required to be paid to any Mortgagor under applicable law or under the related ~~Mortgage Loan documents~~Mortgage); ~~provided that~~ and (vii) 50% of any and all substitution fees (net of any costs incurred in connection with any substitution) collected on the Serviced Loans. Notwithstanding the foregoing with respect to ~~the items~~ any 50% sharing of ~~additional servicing compensation set forth~~ fees referenced in ~~clauses (i) and (ii) above~~this Section 3.11(b), the Master Servicer shall, in turn, pay the amounts described therein to the related Sub-Servicer to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. Notwithstanding anything to the contrary contained herein, any entity acting as Master Servicer shall be entitled to ~~assign~~ all such fees if with respect to ~~an Affiliate~~ the right to receive, for so long as (but only for so long as) such entity continues to act as Master Servicer, any or all of the items constituting additional servicing compensation contemplated by this Section 3.11(b). The Master Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing activity related to any ~~Sub-Servicer retained by it and the premiums for any blanket policy insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent~~ such ~~expenses are not payable directly out of the Collection Account, and~~ fee the Master Servicer ~~shall~~ is not ~~be entitled~~ required to ~~reimbursement therefor except as expressly provided in~~ seek the consent and/or approval of the Special Servicer pursuant to this Agreement. To the extent that any of the amounts described in the preceding paragraph are collected by the Special Servicer, the Special Servicer shall promptly pay such amounts to the Master Servicer. (c) As compensation for its activities hereunder, the Special Servicer shall be entitled to receive monthly the Special Servicing Fee with respect to each Specially Serviced ~~Mortgage~~ Loan and each REO ~~Loan~~Serviced Loan for which it is responsible. As to each Specially Serviced ~~Mortgage~~ Loan and REO Serviced Loan, for any particular calendar month or applicable portion thereof, the Special Servicing Fee shall accrue ~~from time to time~~ at the Special Servicing Fee Rate on the ~~basis of the~~ same principal amount ~~and for the same number of days respecting which any related~~ as interest ~~payment due~~ accrues from time to time during such calendar month (or portion thereof) on such ~~Mortgage~~ Specially Serviced Loan or is deemed to ~~be due~~ accrue from time to time during such calendar month (or portion thereof) on such REO ~~Loan is computed under~~ Serviced Loan, as the ~~terms of the related Mortgage Note (as such terms~~ case may ~~be modified at any time following the Closing Date) and applicable law~~be, and ~~without giving effect to any Excess~~ shall be calculated on the same Interest ~~that~~ Accrual Basis as is applicable for such Specially Serviced Loan or REO Serviced Loan, as the case may ~~accrue on any Hyper- Amortization Loan after its Anticipated Repayment Date~~be. The Special Servicing Fee with respect to any Specially Serviced ~~Mortgage~~ Loan or REO Serviced Loan shall cease to accrue as of the date a Liquidation Event occurs in respect thereof or or, in the case of a Specially Serviced Loan, as of the date it becomes a Corrected ~~Mortgage~~ Serviced Loan. Earned but unpaid Special Servicing Fees with respect to Specially Serviced Loans and REO Serviced Loans shall be payable monthly out of general collections on the ~~Mortgage~~ Loans and any REO Properties on deposit in the ~~Collection~~ Certificate Account pursuant to Section 3.05(a); provided, however, if a Serviced Whole Loan is involved, first out of funds on deposit in the related Serviced Whole Loan Custodial Account pursuant to Section 3.05(f). As further compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Workout Fee with respect to each Corrected ~~Mortgage~~ Serviced Loan, unless the basis on which such Mortgage Loan became a Corrected Mortgage Loan was the remediation of a circumstance or condition relating to the Mortgage Loan Seller's or the Additional Warranting Party's obligation to repurchase such Mortgage Loan pursuant to Section 2.03. As to each Corrected ~~Mortgage~~ Serviced Loan~~, subject to the exceptions provided for in the preceding sentence~~, the Workout Fee shall be payable ~~from~~out of, and shall be calculated by application of the Workout Fee Rate to, each ~~collection~~ payment of interest (other than Default Interest ~~and, in the case of a Hyper-Amortization Loan after its Anticipated Repayment Date,~~ and Excess Interest) and principal received from the related Mortgagor on such ~~Mortgage~~ Serviced Loan for so long as it remains a Corrected ~~Mortgage~~ Serviced Loan. The Workout Fee with respect to any such Corrected ~~Mortgage~~ Serviced Loan will cease to be payable if a new Servicing Transfer Event occurs with respect thereto or if the related Mortgaged Property becomes an REO Property; provided that a new Workout Fee ~~will~~ would become payable if and when ~~such Mortgage~~ the subject Serviced Loan again ~~becomes~~ became a Corrected ~~Mortgage~~ Serviced Loan. If the Special Servicer is ~~terminated other than for cause~~ terminated, including pursuant to Section 3.23, or resigns in accordance with ~~clause (ii) of the first paragraph of~~ Section 6.04, it shall retain the right to receive any and all Workout Fees payable in respect of ~~Mortgage~~ (i) any Serviced Loans serviced by it that became Corrected ~~Mortgage~~ Serviced Loans during the period that it acted as Special Servicer and that were still ~~such~~ Corrected Serviced Loans at the time of such termination or resignation and (ii) any Specially Serviced Loans for which such Special Servicer has resolved the circumstances and/or conditions causing any such Serviced Loan to be a Specially Serviced Loan, but that had not as of the time the Special Servicer was terminated become a Corrected Serviced Loan solely because the related Mortgagor had not made three consecutive timely Monthly Payments and that subsequently becomes a Corrected Serviced Loan as a result of the related Mortgagor making such three consecutive timely monthly payments (and the successor to the Special Servicer shall not be entitled to any portion of such Workout Fees), in each case until the Workout Fee for any such ~~Mortgage Loan~~ loan ceases to be payable in accordance with the preceding sentence; provided that, in the case of any Specially Serviced Loan described in clause (ii) of this sentence, the terminated Special Servicer shall immediately deliver the related Servicing File to the Master Servicer, and the Master Servicer shall (without further compensation) monitor that all conditions precedent to such Serviced Loan's becoming a Corrected Serviced Loan are satisfied and, further, shall immediately transfer such Servicing File to the new Special Servicer if and when it becomes apparent to the Master Servicer that such conditions precedent will not be satisfied. As further compensation for its activities hereunder, the Special Servicer shall also be entitled to receive a Liquidation Fee with respect to each Specially Serviced ~~Mortgage~~ Loan or REO ~~Property~~ Serviced Loan as to which it receives any ~~full~~ full, partial or discounted payoff from the related Mortgagor or any Insurance Proceeds, Condemnation Proceeds or Liquidation ~~Proceeds (other than~~ Proceeds. Notwithstanding the foregoing and for the avoidance of doubt, no Liquidation Fee shall be payable in connection with (a) the purchase of ~~any such Specially~~ a Defaulted Serviced ~~Mortgage~~ Loan ~~or REO Property~~ by ~~the Special Servicer pursuant to Section 3.18, by the Master Servicer or~~ the Majority Certificateholder of the Controlling Class pursuant to any applicable purchase right set forth in Section ~~3.18~~ 3.18(c) or (l) or with respect to a purchase of a related Defaulted Serviced Loan at its fair value as determined in Section 3.18, unless such purchase is by an assignee of the Majority Certificateholder of the Controlling Class or the Special Servicer, such assignee is not an affiliate of the Majority Certificateholder of the Controlling Class or the Special Servicer, such assignment is for no material consideration and such purchase occurs or purchase right is exercised more than 90 days from the date that the Special Servicer has initially determined the fair value of the Mortgage Loan, (b) the purchase of any Mortgage Loan by the holder of a subordinate note or a Mezzanine Loan pursuant to a purchase option contained in the related intercreditor agreement unless such purchase occurs or purchase right is exercised more than 90 days from the date that the Special Servicer has initially determined the fair value of the Mortgage Loan, (c) the purchase option of the Majority Certificateholder of the Controlling Class, the Master Servicer or the Special Servicer pursuant to Section 9.01, or (d) the repurchase by the related Mortgage Loan Seller ~~or the Additional Warranting Party~~ of a Mortgage Loan so required to be repurchased by it pursuant to Section 4 of the related Mortgage Loan Purchase and Sale Agreement and Section 2.03 within ~~120~~ the time frame set forth in the Initial Resolution Period and/or the Resolution Extension Period (if applicable); provided that such time frame shall never be less than 90 days from the date that the related Mortgage Loan Seller was first notified of its ~~discovery~~ obligation to so repurchase, or ~~notice~~ (~~whichever occurred earlier~~e) the repurchase by Barclays of the ~~breach~~ Torre Mayor Pari Passu Note A-2 Mortgage Loan or ~~Document Defect~~ the Cayman Islands Mortgage Loan pursuant to Section 6 of the related Mortgage Loan Purchase and Sale Agreement, provided such purchase occurs within 90 days after the date that ~~gave rise~~ the related Mortgage Loan Seller was first notified of its right to ~~the~~ repurchase ~~obligation~~such Loan pursuant to Section 3.18(p) or 3.18(q), ~~and other than in connection with the condemnation or other governmental taking of a Mortgaged Property or REO Property)~~as applicable. As to each such Specially Serviced ~~Mortgage~~ Loan or REO ~~Property~~Serviced Loan, the Liquidation Fee shall be payable ~~from~~out of, and shall be calculated by application of the Liquidation Fee Rate to, any such ~~full~~ full, partial or discounted ~~payoff~~ payoff, Condemnation Proceeds and/or ~~such~~ Liquidation Proceeds received or collected in respect thereof (~~excluding~~ other than any portion of such ~~payoff and/or~~ payment or proceeds that represents ~~accrued but unpaid~~ Default Charges, Excess Interest ~~with respect to~~ or a ~~Hyper-Amortization Loan after its Anticipated Repayment Date or accrued but unpaid Default Interest~~Prepayment Premium)~~; provided that no~~ . The Liquidation Fee ~~will be payable~~ with respect to any such Specially Serviced ~~Mortgage~~ Loan ~~that~~ will not be payable if such Serviced Loan becomes a Corrected Mortgage Loan; and provided, further, that (without limiting the Special Servicer's right to any Workout Fee that is properly payable therefrom), no Liquidation Fee will be payable from, or based upon the receipt of, Liquidation Proceeds collected as a result of any purchase of a Specially Serviced Mortgage Loan or REO Property described in the parenthetical to the first sentence of this paragraph or in connection with a condemnation or other governmental taking of a Mortgaged Property or REO Property. Notwithstanding anything to the contrary herein, a Liquidation Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid from the same proceeds on or with respect to such Mortgage Loan. The Special Servicer's right to receive ~~the~~ any Special Servicing Fee, ~~the~~ Workout Fee and/or ~~the~~ Liquidation Fee to which it is entitled may not be transferred in whole or in part except in connection with the transfer of all of the Special Servicer's responsibilities and obligations under this ~~Agreement~~Agreement and except as otherwise expressly provided herein. (d) The Special Servicer shall be entitled to receive the following items as additional special servicing compensation:, which shall be paid prior to remittance of such amounts, if any, which are required to be paid to any Companion Loan Holder under any Intercreditor Agreement (the following items, collectively, the "Additional Special Servicing Compensation"): (i) ~~(A)~~ any and all Net Default Charges collected with respect to ~~the extent allocable to the period when any Mortgage Loan is~~ a Specially Serviced ~~Mortgage~~ Loan or ~~to the extent allocable to~~ an REO Serviced Loan~~, any Net Default Charges actually collected on such Mortgage Loan or REO Loan, as the case may be, and~~ ; (Bii) any ~~assumption~~ and all Net Assumption Fees, Net Assumption Application Fees, Net Modification Fees, Net Modification Application Fees, extension fees, ~~modification fees~~ consent fees, waiver fees, earnout fees, late payment charges and charges for beneficiary statements or ~~similar fees (excluding Prepayment Premiums)~~ demands that are actually ~~collected~~ received on or with respect to a Specially Serviced ~~Mortgage Loans~~ Loan or an REO ~~Loans; and~~Serviced Loan; (iiiii) 50% of any and all Net Assumption Fees, modification fees, extension fees, consent fees and waiver fees that are actually received on or with respect to a Performing Serviced Loan; (iv) interest or other income earned on deposits in the Special Servicer's applicable REO ~~Account, if established,~~ Account in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to ~~the~~ such REO Account for each Collection Period); and (v) 50% of any and all substitution fees (net of any costs incurred in connection with any substitution) collected on the Serviced Loans. Notwithstanding the foregoing with respect to the fees referenced in the immediately preceding clause (iii), the Special Servicer shall not be entitled to such fees unless the Master Servicer was required to seek the approval or consent of the Special Servicer pursuant to this Agreement with respect to any consent, extension, modification or waiver related to any such fee. To the extent that any of the amounts described in ~~clause (i)(B) of~~ the preceding paragraph are collected by the Master ~~Servicer~~Servicer with respect to a Specially Serviced Loan, the Master Servicer shall promptly pay such amounts to the Special Servicer and shall not be required to deposit such amounts in the ~~Collection~~ Certificate Account ~~pursuant to Section 3.04(a). Additional servicing compensation to which~~ or if a Serviced Whole Loan is involved, in the related Serviced Whole Loan Custodial Account. (e) The Master Servicer ~~(or, if so provided by the applicable Sub-Servicing Agreement, any Sub-Servicer retained thereby) is entitled pursuant to Section 3.11(b) in the form of assumption fees, modification fees~~ and ~~any similar fees (excluding Prepayment Premiums) collected by~~ the Special Servicer on Mortgage Loans that are not Specially Serviced Mortgage Loans or REO Loans, or in the form of charges for beneficiary statements or demands and amounts collected for checks returned for insufficient funds with respect to any Mortgage Loans (including, without limitation, Specially Serviced Mortgage Loans), shall be paid promptly to the Master Servicer by the Special Servicer. Notwithstanding anything to the contrary contained herein, any entity acting as Special Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Special Servicer, any or all of the items constituting additional special servicing compensation contemplated by this Section 3.11(d). The Special Servicer shall each be required (subject to Section 3.11(h) below) to pay out of its own funds all ~~overhead, general and administrative~~ expenses incurred by it in connection with its servicing activities hereunder (~~including, without limitation,~~ including payment of any amounts due and owing to any Sub-Servicers retained by it (including any termination fees) and the premiums for any blanket policy or the standby fee or similar premium, if any, for any master force placed policy obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the ~~Collection Account~~ Certificate Account, the related Serviced Whole Loan Custodial Account, the Reserve Accounts or ~~the~~ an REO ~~Account~~ Account, and neither the Master Servicer ~~is not required to advance such expenses at the direction of the Special Servicer, and~~ nor the Special Servicer shall ~~not~~ be entitled to reimbursement for any such expense incurred by it except as expressly provided in this Agreement. If the Master Servicer is required to make any Servicing Advance hereunder at the direction of the Special Servicer in accordance with Section 3.03(c), Section 3.19 or otherwise, the Special Servicer shall promptly provide the Master Servicer with such documentation regarding the subject Servicing Advance as the Master Servicer may reasonably request. (ef) If the Master ~~Servicer or Special~~ Servicer is required under this Agreement to make a Servicing Advance, but ~~neither~~ does not do so within 10 ten days after such ~~Servicing~~ Advance is required to be made, the Trustee shall, if it has actual knowledge of such failure on the part of the Master ~~Servicer or Special~~ Servicer~~, as the case may be~~, give notice of such failure, as applicable, to the Master Servicer and/or the Special Servicer, as appropriate. If such Servicing Advance is not made by the Master Servicer or the Special Servicer within three (3) Business Days after such notice then (subject to Section 3.11(g) below), the Trustee shall make such Servicing Advance. Any failure by the Master Servicer or the Special Servicer to make a Servicing Advance it is required to make hereunder shall constitute an Event of Default by the Master Servicer or the Special Servicer, as the case may be, subject to and as provided in Section 7.01(a). (f) As and to the extent permitted by Section 3.05(a), the Master Servicer, the Special Servicer (to the extent it has not already been reimbursed for any such Servicing Advance by the Master Servicer) and the Trustee shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each Servicing Advance made thereby (out of its own funds) for so long as such Servicing Advance is outstanding, and such interest will be paid: first, out of any Default Charges collected on or in respect of the related Mortgage Loan or REO Loan; and second, at any time coinciding with or following the reimbursement of such Servicing Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Collection Account. As and to the extent provided in Sections 3.03(a) and 3.05(a), the Master Servicer shall reimburse itself, the Special Servicer or the Trustee, as appropriate, for any Servicing Advance made thereby as soon as practicable after funds available for such purpose are deposited in the Collection Account or a Servicing Account. (g) Notwithstanding anything to the contrary set forth herein, none of the Master Servicer, the Special Servicer or the Trustee shall be required to make any Servicing Advance (including, without limitation, an Emergency Advance) that it determines in its reasonable, good faith judgment would constitute a Nonrecoverable Servicing Advance. In addition, Nonrecoverable Servicing Advances shall be reimbursable pursuant to Section 3.05(a)(vii) out of general collections on the Mortgage Pool on deposit in the Collection Account. The determination by the Master Servicer, the Special Servicer or, if applicable, the Trustee, that it has made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced by an Officer's Certificate delivered promptly to the Trustee (or, if applicable, retained thereby), the Sponsor and the Rating Agencies, setting forth the basis for such determination, together with (if such determination is prior to the liquidation of the related Mortgage Loan or REO Property) a copy of an Appraisal of the related Mortgaged Pros

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc. Series 2006-1)

Servicing Compensation; Interest on Servicing Advances; Payment of Certain Expenses. Obligations of the Trustee and the Fiscal Agent Regarding Back-up Servicing Advances. (a) As compensation for its activities hereunder, the Master Servicer shall be entitled to receive the Master Servicing Fee with respect to each Mortgage Loan (including, without limitation, each Specially Serviced Mortgage Loan) and REO Loan. As to each such Mortgage Loan and REO Loan, the Master Servicing Fee shall accrue ~~from time to time~~ at the applicable Master Servicing Fee Rate on the basis of the same principal amount and for the same number of days respecting which ~~any~~ the related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be changed or modified at any time following the Closing Date) and applicable law~~, and without giving effect to any Excess Interest that may accrue on any Hyper-Amortization Loan after its Anticipated Repayment Date~~. The Master Servicing Fee with respect to any Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in respect thereof. Earned but unpaid Master Servicing Fees shall be payable monthly, on a loan-by-loan basis, from payments of interest on each Mortgage Loan and REO Revenues allocable as interest on each REO Loan. The Master Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of any Mortgage Loan or REO Loan out of Insurance Proceeds or Liquidation ~~Proceeds~~ Proceeds, to the extent permitted by Section 3.05(a). The right to receive the Master Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the Master Servicer's responsibilities and obligations under this Agreement or except as provided in Section 3.22(d). The Master Servicer shall, monthly out of its Master Servicing Fee, pay to any Sub-Servicer retained by the Master Servicer such Sub-Servicer's sub-servicing fee (including, without limitation, any Primary Servicing Fee, if applicable), to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. (b) The Master Servicer shall be entitled to receive as additional servicing compensation: (i) ~~Net Default~~ Penalty Charges, assumption fees, modification ~~fees~~ fees, charges for beneficiary statements or demands, amounts collected for checks returned for insufficient funds and any similar fees (excluding Prepayment Premiums), in each case to the extent actually paid by a Mortgagor with respect to a Mortgage Loan that is not a Specially Serviced Mortgage ~~Loan~~Loan (except that the Master Servicer shall in turn pay the foregoing amounts to the related Sub-Servicer to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement); (ii) ~~charges for beneficiary statements or demands and amounts collected for checks returned for insufficient funds, to the extent actually paid by a Mortgagor with respect to any Mortgage Loan; (iii)~~ any Prepayment Interest Excesses and Balloon Payment Interest Excesses collected on the Mortgage Loans (but only to the extent such Prepayment Interest Excesses collected during any Collection Period are greater than all Prepayment Interest Shortfalls incurred in respect of the Mortgage Loans during such Collection Period); andLoans; (iviii) interest or other income earned on deposits in the ~~Investment Accounts maintained by the Master Servicer~~Certificate Account, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to ~~any such Investment~~ the Certificate Account for each Collection ~~Period~~ Period); and~~, in the case of a Servicing Account or Reserve Account, only~~ (iv) to the extent ~~such interest or other income is~~ not required to be paid to any Mortgagor under applicable law or under the related ~~Mortgage Loan documents); provided that with respect to~~ Mortgage, any interest or other income earned on deposits in the ~~items of additional servicing compensation set forth in clauses (i) and (ii) above,~~ Servicing Accounts maintained by the Master Servicer shall, in turn, pay the amounts described therein to the related Sub-Servicer to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. Notwithstanding anything to the contrary contained herein, any entity acting as Master Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Master Servicer~~, any or all of the items constituting additional servicing compensation contemplated by this Section 3.11(b)~~. The Master Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any Sub-Servicer retained by it and the premiums for any blanket policy insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the ~~Collection~~ Certificate Account, and the Master Servicer shall not be entitled to reimbursement therefor except as expressly provided in this Agreement. (c) As compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Special Servicing Fee with respect to each Specially Serviced Mortgage Loan and each REO Loan. As to each Specially Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from time to time at the Special Servicing Fee Rate on the basis of the same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be modified at any time following the Closing Date) and applicable law~~, and without giving effect to any Excess Interest that may accrue on any Hyper- Amortization Loan after its Anticipated Repayment Date~~. The Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO Loan shall cease to accrue as of the date a Liquidation Event occurs in respect thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid Special Servicing Fees shall be payable monthly out of general collections on the Mortgage Loans and any REO Properties on deposit in the ~~Collection~~ Certificate Account pursuant to Section 3.05(a). As further compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Standby Fee with respect to each Mortgage Loan and each REO Loan. As to each Mortgage Loan and each REO Loan, the Standby Fee shall accrue from time to time at the Standby Fee Rate on the basis of the same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed. Standby Fees shall be payable monthly by the Master Servicer out of its Master Servicing Fees with respect to each Mortgage Loan and each REO Loan. As further compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Workout Fee with respect to each Corrected Mortgage Loan, unless the basis on which such Mortgage Loan became a Corrected Mortgage Loan was the remediation of a circumstance or condition relating to the Mortgage Loan Seller's or the Additional Warranting Party's obligation to repurchase such Mortgage Loan pursuant to Section 2.03, in which case, if such Mortgage Loan is repurchased within the 120-day period described in Section 2.03(a), no Workout Fee will be payable from or based upon the receipt of, any Purchase Price paid by the Mortgage Loan Seller or the Additional Warranting Party in satisfaction of such repurchase obligation. Furthermore, no Workout Fees will be payable from or based upon the receipt of any Liquidation Proceeds paid by any Majority Certificateholder of the Controlling Class or the Master Servicer in connection with the purchase of all the Mortgage Loans and any REO Properties in the Trust Fund pursuant to Section 9.01 hereof. As to each Corrected Mortgage Loan, subject to the exceptions provided for in the two preceding ~~sentence~~sentences, the Workout Fee shall be payable from, and shall be calculated by application of the Workout Fee Rate to, each collection of interest (other than Default ~~Interest and, in the case of a Hyper-Amortization Loan after its Anticipated Repayment Date, Excess~~ Interest) and principal received on such Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with respect to any Corrected Mortgage Loan will cease to be payable if a Servicing Transfer Event occurs with respect thereto or if the related Mortgaged Property becomes an REO Property; provided that a new Workout Fee will become payable if and when such Mortgage Loan again becomes a Corrected Mortgage Loan. If the Special Servicer is terminated other than for cause or resigns in accordance with clause (ii) of the first paragraph of Section 6.04, it shall retain the right to receive any and all Workout Fees payable in respect of Mortgage Loans that became Corrected Mortgage Loans during the period that it acted as Special Servicer and were still such at the time of such termination or resignation (and the successor Special Servicer shall not be entitled to any portion of such Workout Fees), in each case until the Workout Fee for any such Mortgage Loan ceases to be payable in accordance with the preceding sentence. As further compensation for its activities hereunder, the Special Servicer shall also be entitled to receive a Liquidation Fee with respect to each Specially Serviced Mortgage Loan or REO Property as to which it receives any full or discounted payoff from the related Mortgagor or any Liquidation Proceeds (other than in connection with the purchase of any such Specially Serviced Mortgage Loan or REO Property by the Special Servicer pursuant to Section 3.18, by the Master Servicer or the Majority Certificateholder of the Controlling Class pursuant to Section 3.18 or Section ~~9.01,~~ 9.01 or by the Mortgage Loan Seller or the Additional Warranting Party pursuant to Section 2.03 within 120 days of its discovery or notice ~~(whichever occurred earlier)~~ of the breach or Document Defect that gave rise to the repurchase obligation, and other than in connection with the condemnation or other governmental taking of a Mortgaged Property or REO Property). As to each such Specially Serviced Mortgage Loan or REO Property, the Liquidation Fee shall be payable from, and shall be calculated by application of the Liquidation Fee Rate to, such full or discounted payoff and/or such Liquidation Proceeds (excluding any portion of such payoff and/or proceeds that represents accrued but unpaid Excess Interest with respect to a Hyper-Amortization Loan after its Anticipated Repayment Date or accrued but unpaid Default Interest)Proceeds; provided that no Liquidation Fee will be payable with respect to any such Specially Serviced Mortgage Loan that becomes a Corrected Mortgage Loan; and provided, further, that (without limiting the Special Servicer's right to any Workout Fee that is properly payable therefrom), no Liquidation Fee will be payable from, or based upon the receipt of, Liquidation Proceeds collected as a result of any purchase of a Specially Serviced Mortgage Loan or REO Property described in the parenthetical to the first sentence of this paragraph or in connection with a condemnation or other governmental taking of a Mortgaged Property or REO Property. Notwithstanding anything to the contrary herein, a Liquidation Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid from the same proceeds on or with respect to such Mortgage Loan. The Special Servicer's right to receive the Special Servicing Fee, the Standby Fee, the Workout Fee and/or the Liquidation Fee may not be transferred in whole or in part except in connection with the transfer of all of the Special Servicer's responsibilities and obligations under this Agreement. (d) The Special Servicer shall be entitled to receive as additional special servicing compensation: (i) (A) to the extent allocable to the period when any Mortgage Loan is a Specially Serviced Mortgage Loan or ~~to the extent allocable to~~ an REO Loan, any Net ~~Default~~ Penalty Charges ~~actually~~ collected on such Mortgage Loan ~~or REO Loan, as the case may be,~~ and (B) ~~any~~ assumption fees, modification ~~fees~~ fees, charges for beneficiary statements or demands, amounts collected for checks returned for insufficient funds and any similar fees (excluding Prepayment Premiums) ), in each case to the extent actually ~~collected~~ received on or with respect to Specially Serviced Mortgage Loans or REO Loans~~; and~~; (ii) interest or other income earned on deposits in the REO Account, if established, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to the REO Account for each Collection Period); and (iii) to the extent not required to be paid to any Mortgagor under applicable law, any interest or other income earned on deposits in the Servicing Accounts maintained by the Special Servicer. To the extent the amounts described in clause (i)(B) of the preceding paragraph are collected by the Master Servicer, the Master Servicer shall promptly pay such amounts to the Special Servicer and shall not be required to deposit such amounts in the ~~Collection~~ Certificate Account pursuant to Section 3.04(a). Additional servicing compensation to which the Master Servicer (or, if so provided by the applicable Sub-Servicing Agreement, any Sub-Servicer retained thereby) is entitled pursuant to Section 3.11(b) in the form of assumption fees, modification ~~fees~~ fees, charges for beneficiary statements or demands, amounts collected for checks returned for insufficient funds and any similar fees (excluding Prepayment Premiums) collected by the Special Servicer on Mortgage Loans that are not Specially Serviced Mortgage Loans or REO Loans, or in the form of charges for beneficiary statements or demands and amounts collected for checks returned for insufficient funds with respect to any Mortgage Loans (including, without limitation, Specially Serviced Mortgage Loans), shall be paid promptly to the Master Servicer by the Special Servicer. Notwithstanding anything to the contrary contained herein, any entity acting as Special Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Special Servicer, any or all of the items constituting additional special servicing compensation contemplated by this Section 3.11(d). The Special Servicer shall be required to pay out of its own funds all overhead, general and administrative expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any Sub-Servicers retained by it and the premiums for any blanket policy obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the ~~Collection~~ Certificate Account or the REO ~~Account and the Master Servicer is not required to advance such expenses at the direction of the Special Servicer~~Account, and the Special Servicer shall not be entitled to reimbursement except as expressly provided in this Agreement. (e) If the Master Servicer or Special Servicer is required under this Agreement to make a Servicing Advance, but neither does so within 10 15 days after such Servicing Advance is required to be made, the Trustee shall, if it has actual knowledge of such failure on the part of the Master Servicer or Special Servicer, as the case may be, give notice of such failure, as applicable, to the Master Servicer ~~and/or~~ and the Special Servicer~~, as appropriate~~. If such Servicing Advance is not made by the Master Servicer or the Special Servicer within ~~three (3)~~ one Business ~~Days~~ Day after such notice then (subject to Section 3.11(g) below), the Trustee shall make such Servicing Advance. If the Trustee fails to make any Servicing Advance required to be made under this Section 3.11(e), then (subject to Section 3.11(g) below) the Fiscal Agent shall make such Advance within one Business Day of such failure on the part - 92 - of the Trustee and, thereby, the Trustee shall be deemed not to be in default under this Agreement. Any failure by the Master Servicer or the Special Servicer to make a Servicing Advance it is required to make hereunder shall constitute an Event of Default by the Master Servicer or the Special Servicer, as the case may be, subject to and as provided in Section ~~7.01(a~~7.01(a)(iv). (f) As and to the extent permitted by Section 3.05(a), the Master Servicer, the Special ~~Servicer (to~~ Servicer, the ~~extent it has not already been reimbursed for any such Servicing Advance by the Master Servicer)~~ Trustee and the ~~Trustee~~ Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each Servicing Advance made thereby (out of its own funds) for so long as such Servicing Advance is outstanding, and such interest will be paid: first, out of any ~~Default~~ Penalty Charges collected on or in respect of the related Mortgage Loan during, and allocable to, the period, if any, that it was a Specially Serviced Mortgage Loan or an REO Loan; and second, at any time coinciding with or following the reimbursement of such Servicing Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the ~~Collection~~ Certificate Account. As and to the extent provided in Sections 3.03(a) and 3.05(a), the Master Servicer shall reimburse itself, the Special ~~Servicer~~ Servicer, the Trustee or the ~~Trustee~~Fiscal Agent, as appropriate, for any Servicing Advance made thereby as soon as practicable after funds available for such purpose are deposited in the ~~Collection~~ Certificate Account or a Servicing Account. (g) Notwithstanding anything to the contrary set forth herein, none of the Master Servicer, the Special ~~Servicer~~ Servicer, the Trustee or the ~~Trustee~~ Fiscal Agent shall be required to make any Servicing Advance (including, without limitation, an Emergency Advance) that it determines in its reasonable, good faith judgment would constitute a Nonrecoverable Servicing Advance. In addition, Nonrecoverable Servicing Advances shall be reimbursable pursuant to Section 3.05(a)(vii) out of general collections on the Mortgage Pool on deposit in the ~~Collection~~ Certificate Account. The determination by the Master Servicer, the Special Servicer or, if applicable, the ~~Trustee~~Trustee or the Fiscal Agent, that it has made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced by an Officer's Certificate delivered promptly to the Trustee (or, if applicable, retained thereby), the Fiscal Agent (or, if applicable, retained thereby), the Sponsor and the Rating Agencies, setting forth the basis for such determination, together with (if such determination is prior to the liquidation of the related Mortgage Loan or REO Property) a copy of an Appraisal of the related Mortgaged ~~Pro~~Property or

Appears in 1 contract

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

Servicing Compensation; Interest on Servicing Advances; Payment of Certain Expenses. Obligations of the Trustee Regarding Back-up Servicing Advances. (a) As compensation for its activities hereunder, the Master Servicer shall be entitled to receive the Master Servicing Fee with respect to each ~~Mortgage~~ Loan (~~including, without limitation,~~ including each Specially Serviced ~~Mortgage~~ Loan) and each related REO Loan. As to each ~~Mortgage~~ such Loan and REO Loan, for each calendar month (commencing with August 2007) or any applicable portion thereof, the Master Servicing Fee shall accrue ~~from time to time~~ at the ~~applicable~~ related Master Servicing Fee Rate on the ~~basis of the~~ same principal ~~amount and for the same number of days respecting which any related~~ amount, as interest ~~payment due~~ accrues from time to time during such calendar month (or portion thereof) on such ~~Mortgage~~ Loan or is deemed to ~~be due~~ accrue from time to time during such calendar month (or portion thereof) on such REO ~~Loan is computed under~~ Loan, as the ~~terms of the related Mortgage Note (as such terms~~ case may ~~be changed or modified at any time following the Closing Date) and applicable law~~be, and ~~without giving effect to any Excess~~ shall be calculated on the same Interest ~~that~~ Accrual Basis as is applicable for such Loan or REO Loan, as the case may ~~accrue on any Hyper-Amortization Loan after its Anticipated Repayment Date~~be. The Master Servicing Fee with respect to any ~~Mortgage~~ Loan or REO Loan shall cease to accrue if a Liquidation Event (or with respect to a Non-Serviced Loan, a similar event occurs under the related Non-Serviced Loan Pooling Agreement) occurs in respect thereof. ~~Earned but unpaid~~ Master Servicing Fees earned with respect to any such Loan or REO Loan shall be payable ~~monthly, on a loan-by-loan basis,~~ monthly from payments of interest on ~~each Mortgage~~ such Loan ~~and~~ or REO Revenues allocable as interest on ~~each~~ such REO Loan, as the case may be. The Master Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of any ~~Mortgage~~ Loan or REO Loan out of the portion of any related Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds to allocable as interest on such Loan or REO Loan, as the ~~extent permitted by Section 3.05(a)~~case may be. The right to receive the Master Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the Master Servicer's responsibilities and obligations under this Agreement or and except as otherwise expressly provided in ~~Section 3.22(d)~~the following paragraph. ~~The Master Servicer shall~~For the avoidance of doubt, ~~monthly out of its Master Servicing Fee, pay to any Sub-Servicer retained by~~ the Master Servicer ~~such Sub-Servicer's sub-servicing fee (including, without limitation,~~ will not be entitled to any ~~Primary~~ Master Servicing ~~Fee, if applicable),~~ Fee with respect to ~~the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement~~any Companion Loan related to a Mortgage Loan sold by HRECC. (b) The Master Servicer shall be entitled to receive the following items as additional servicing compensation:, which shall be paid prior to remittance of such amounts, if any, which are required to be paid in the case of a Serviced Whole Loan to any Companion Loan Holder under any Intercreditor Agreement (the following items, collectively, "Additional Master Servicing Compensation"): (i) any and all Net Default Charges, ~~assumption fees~~Net Assumption Application Fees, ~~modification~~ Net Modification Application Fees and earnout fees collected with respect to a Performing Serviced Loan; (ii) 50% of any and ~~any similar fees (excluding Prepayment Premiums), in each case to the extent~~ all Net Assumption Fees actually paid by a Mortgagor with respect to a ~~Mortgage Loan that is not a Specially~~ Performing Serviced ~~Mortgage~~ Loan; (iiiii) ~~charges for beneficiary statements or demands~~ 50% of any and ~~amounts collected for checks returned for insufficient funds~~all Net Modification Fees, ~~to the extent~~ extension fees, consent fees and waiver fees actually paid by a Mortgagor with respect to a Performing Serviced Loan for which Special Servicer approval is required; (iv) any ~~Mortgage~~ and all charges for beneficiary statements or demands, amounts collected for checks returned for insufficient funds and other loan processing fees actually paid by a Mortgagor with respect to a Performing Serviced Loan and, in the case of checks returned for insufficient funds, with respect to a Specially Serviced Loan; (~~iii~~v) any and all Prepayment Interest ~~Excesses~~ Excess collected on the Mortgage Loans (~~but only to the extent such Prepayment Interest Excesses collected during any Collection Period are greater~~ other than ~~all Prepayment Interest Shortfalls incurred in respect of the~~ Non-Serviced Mortgage ~~Loans during such Collection Period~~Loans)~~; and~~; (ivvi) interest or other income earned on deposits in the Investment Accounts maintained by the Master Servicer, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to any such Investment Account for each Collection Period and, further, in the case of a Servicing Account or Reserve Account, only to the extent such interest or other income is not required to be paid to any Mortgagor under applicable law or under the related ~~Mortgage Loan documents~~Mortgage); ~~provided that~~ and (vii) 50% of any and all substitution fees (net of any costs incurred in connection with any substitution) collected on a Performing Serviced Loan. Notwithstanding the foregoing with respect to ~~the items~~ any 50% sharing of ~~additional servicing compensation set forth~~ fees referenced in ~~clauses (i) and (ii) above~~this Section 3.11(b), the Master Servicer shall, in turn, pay the amounts described therein to the related Sub-Servicer to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. Notwithstanding anything to the contrary contained herein, any entity acting as Master Servicer shall be entitled to ~~assign~~ all such fees if with respect to ~~an Affiliate~~ the right to receive, for so long as (but only for so long as) such entity continues to act as Master Servicer, any or all of the items constituting additional servicing compensation contemplated by this Section 3.11(b). The Master Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing activity related to any ~~Sub-Servicer retained by it and the premiums for any blanket policy insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent~~ such ~~expenses are not payable directly out of the Collection Account, and~~ fee the Master Servicer ~~shall~~ is not ~~be entitled~~ required to ~~reimbursement therefor except as expressly provided in~~ seek the consent and/or approval of the Special Servicer pursuant to this Agreement. To the extent that any of the amounts described in the preceding paragraph are collected by the Special Servicer, the Special Servicer shall promptly pay such amounts to the Master Servicer. (c) As compensation for its activities hereunder, the Special Servicer shall be entitled to receive monthly the Special Servicing Fee with respect to each Specially Serviced ~~Mortgage~~ Loan and each REO ~~Loan~~Loan for which it is responsible. As to each Specially Serviced ~~Mortgage~~ Loan and REO Loan, for any particular calendar month or applicable portion thereof, the Special Servicing Fee shall accrue ~~from time to time~~ at the Special Servicing Fee Rate on the ~~basis of the~~ same principal amount ~~and for the same number of days respecting which any related~~ as interest ~~payment due~~ accrues from time to time during such calendar month (or portion thereof) on such ~~Mortgage~~ Specially Serviced Loan or is deemed to ~~be due~~ accrue from time to time during such calendar month (or portion thereof) on such REO ~~Loan is computed under~~ Loan, as the ~~terms of the related Mortgage Note (as such terms~~ case may ~~be modified at any time following the Closing Date) and applicable law~~be, and ~~without giving effect to any Excess~~ shall be calculated on the same Interest ~~that~~ Accrual Basis as is applicable for such Specially Serviced Loan or REO Loan, as the case may ~~accrue on any Hyper- Amortization Loan after its Anticipated Repayment Date~~be. The Special Servicing Fee with respect to any Specially Serviced ~~Mortgage~~ Loan or REO Loan shall cease to accrue as of the date a Liquidation Event occurs in respect thereof or or, in the case of a Specially Serviced Loan, as of the date it becomes a Corrected ~~Mortgage~~ Serviced Loan. Earned but unpaid Special Servicing Fees with respect to Specially Serviced Loans and REO Loans shall be payable monthly out of general collections on the ~~Mortgage~~ Loans and any REO Properties on deposit in the ~~Collection~~ Certificate Account pursuant to Section 3.05(a); provided, however, if a Serviced Whole Loan is involved, first out of funds on deposit in the related Serviced Whole Loan Custodial Account pursuant to Section 3.05(f). As further compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Workout Fee with respect to each Corrected ~~Mortgage~~ Serviced Loan, unless the basis on which such Mortgage Loan became a Corrected Mortgage Loan was the remediation of a circumstance or condition relating to the Mortgage Loan Seller's or the Additional Warranting Party's obligation to repurchase such Mortgage Loan pursuant to Section 2.03. As to each Corrected ~~Mortgage~~ Serviced Loan~~, subject to the exceptions provided for in the preceding sentence~~, the Workout Fee shall be payable ~~from~~out of, and shall be calculated by application of the Workout Fee Rate to, each ~~collection~~ payment of interest (other than Default ~~Interest and, in the case of a Hyper-Amortization Loan after its Anticipated Repayment Date, Excess~~ Interest) and principal received from the related Mortgagor on such ~~Mortgage~~ Serviced Loan for so long as it remains a Corrected ~~Mortgage~~ Serviced Loan. The Workout Fee with respect to any such Corrected ~~Mortgage~~ Serviced Loan will cease to be payable if a new Servicing Transfer Event occurs with respect thereto or if the related Mortgaged Property becomes an a REO Property; provided that a new Workout Fee ~~will~~ would become payable if and when ~~such Mortgage~~ the subject Serviced Loan again ~~becomes~~ became a Corrected ~~Mortgage~~ Serviced Loan. If the Special Servicer is ~~terminated other than for cause~~ terminated, including pursuant to Section 3.23, or resigns in accordance with ~~clause (ii) of the first paragraph of~~ Section 6.04, it shall retain the right to receive any and all Workout Fees payable in respect of ~~Mortgage~~ (i) any Serviced Loans serviced by it that became Corrected ~~Mortgage~~ Serviced Loans during the period that it acted as Special Servicer and that were still ~~such~~ Corrected Serviced Loans at the time of such termination or resignation and (ii) any Specially Serviced Loans for which such Special Servicer has resolved the circumstances and/or conditions causing any such Serviced Loan to be a Specially Serviced Loan, but that had not as of the time the Special Servicer was terminated become a Corrected Serviced Loan solely because the related Mortgagor had not made three consecutive timely Monthly Payments and that subsequently becomes a Corrected Serviced Loan as a result of the related Mortgagor making such three consecutive timely monthly payments (and the successor to the Special Servicer shall not be entitled to any portion of such Workout Fees), in each case until the Workout Fee for any such ~~Mortgage Loan~~ loan ceases to be payable in accordance with the preceding sentence; provided that, in the case of any Specially Serviced Loan described in clause (ii) of this sentence, the terminated Special Servicer shall immediately deliver the related Servicing File to the Master Servicer, and the Master Servicer shall (without further compensation) monitor that all conditions precedent to such Serviced Loan's becoming a Corrected Serviced Loan are satisfied and, further, shall immediately transfer such Servicing File to the new Special Servicer if and when it becomes apparent to the Master Servicer that such conditions precedent will not be satisfied. As further compensation for its activities hereunder, the Special Servicer shall also be entitled to receive a Liquidation Fee with respect to each Specially Serviced ~~Mortgage~~ Loan or REO ~~Property~~ Loan as to which it receives any ~~full~~ full, partial or discounted payoff from the related Mortgagor or any Insurance Proceeds, Condemnation Proceeds or Liquidation ~~Proceeds (other than~~ Proceeds. Notwithstanding the foregoing and for the avoidance of doubt, no Liquidation Fee shall be payable in connection ~~with~~ with: (a) the purchase of ~~any such Specially~~ a Defaulted Serviced ~~Mortgage~~ Loan ~~or REO Property~~ by ~~the Special Servicer pursuant to Section 3.18, by the Master Servicer or~~ the Majority Certificateholder of the Controlling Class pursuant to any applicable purchase right set forth in Section ~~3.18~~ 3.18(c) or with respect to a purchase of a related Defaulted Serviced Loan at its fair value as determined in Section 3.18, unless such purchase is by an assignee of the Majority Certificateholder of the Controlling Class or the Special Servicer, such assignee is not an affiliate of the Majority Certificateholder of the Controlling Class or the Special Servicer, such assignment is for no material consideration and such purchase occurs or purchase right is exercised more than 90 days from the date that the Special Servicer has initially determined the fair value of the related Mortgage Loan; (b) the purchase of any Mortgage Loan by the related A/B Whole Loan Purchase Option Holder (or its designee) or the holder of a subordinate note or a Mezzanine Loan (or its designee) pursuant to a purchase option contained in the related intercreditor agreement unless such purchase occurs or purchase right is exercised more than 90 days from the date that the Special Servicer has initially determined the fair value of the Mortgage Loan; (c) the purchase option of the Majority Certificateholder of the Controlling Class, the Master Servicer or the Special Servicer pursuant to Section 9.01~~, or~~ ; (d) the repurchase by the related Mortgage Loan Seller ~~or the Additional Warranting Party~~ of a Mortgage Loan so required to be repurchased by it pursuant to Section 4 of the related Mortgage Loan Purchase and Sale Agreement and Section 2.03 within ~~120~~ the time frame set forth in the Initial Resolution Period and/or the Resolution Extension Period (if applicable), provided that such purchase occurs within 90 days after the date that such Mortgage Loan Seller was first notified of its ~~discovery~~ obligation to repurchase such Loan; or ~~notice~~ (~~whichever occurred earlier~~e) ~~of the breach or Document Defect that gave rise to the repurchase obligation, and other than~~ in connection with a Loss of Value Payment by the ~~condemnation or other governmental taking of a Mortgaged Property or REO Property)~~related Mortgage Loan Seller. As to each such Specially Serviced ~~Mortgage~~ Loan or REO ~~Property~~Loan, the Liquidation Fee shall be payable ~~from~~out of, and shall be calculated by application of the Liquidation Fee Rate to, any such ~~full~~ full, partial or discounted ~~payoff~~ payoff, Condemnation Proceeds and/or ~~such~~ Liquidation Proceeds received or collected in respect thereof (~~excluding~~ other than any portion of such ~~payoff and/or~~ payment or proceeds that represents ~~accrued but unpaid Excess Interest with respect to~~ Default Charges or a ~~Hyper-Amortization Loan after its Anticipated Repayment Date or accrued but unpaid Default Interest~~Prepayment Premium)~~; provided that no~~ . The Liquidation Fee ~~will be payable~~ with respect to any such Specially Serviced ~~Mortgage~~ Loan ~~that~~ will not be payable if such Serviced Loan becomes a Corrected Mortgage Loan; and provided, further, that (without limiting the Special Servicer's right to any Workout Fee that is properly payable therefrom), no Liquidation Fee will be payable from, or based upon the receipt of, Liquidation Proceeds collected as a result of any purchase of a Specially Serviced Mortgage Loan or REO Property described in the parenthetical to the first sentence of this paragraph or in connection with a condemnation or other governmental taking of a Mortgaged Property or REO Property. Notwithstanding anything to the contrary herein, a Liquidation Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid from the same proceeds on or with respect to such Mortgage Loan. The Special Servicer's right to receive ~~the~~ any Special Servicing Fee, ~~the~~ Workout Fee and/or ~~the~~ Liquidation Fee to which it is entitled may not be transferred in whole or in part except in connection with the transfer of all of the Special Servicer's responsibilities and obligations under this ~~Agreement~~Agreement and except as otherwise expressly provided herein. (d) The Special Servicer shall be entitled to receive the following items as additional special servicing compensation:, which shall be paid prior to remittance of such amounts, if any, which are required to be paid to the related Companion Loan Holder in the case of a Serviced Whole Loan under the related Intercreditor Agreement (the following items, collectively, the "Additional Special Servicing Compensation"): (i) ~~(A)~~ any and all Net Default Charges collected with respect to ~~the extent allocable to the period when any Mortgage Loan is~~ a Specially Serviced ~~Mortgage~~ Loan or ~~to the extent allocable to an~~ a REO Loan~~, any Net Default Charges actually collected on such Mortgage Loan or REO Loan, as the case may be, and~~ ; (Bii) any ~~assumption~~ and all Net Assumption Fees, Net Assumption Application Fees, Net Modification Fees, Net Modification Application Fees, extension fees, ~~modification fees~~ consent fees, waiver fees, earnout fees, substitution fees, late payment charges and charges for beneficiary statements or ~~similar fees (excluding Prepayment Premiums)~~ demands that are actually ~~collected~~ received on or with respect to a Specially Serviced ~~Mortgage Loans~~ Loan or a REO ~~Loans; and~~Loan; (iiiii) 50% of any and all Net Assumption Fees, modification fees, extension fees, consent fees and waiver fees that are actually received on or with respect to a Performing Serviced Loan; (iv) interest or other income earned on deposits in the Special Servicer's applicable REO ~~Account, if established,~~ Account in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to ~~the~~ such REO Account for each Collection Period); and (v) 50% of any and all substitution fees (net of any costs incurred in connection with any substitution) collected on a Performing Serviced Loan. Notwithstanding the foregoing with respect to the fees referenced in the immediately preceding clauses (iii) and (v), the Special Servicer shall not be entitled to such fees unless the Master Servicer was required to seek the approval or consent of the Special Servicer pursuant to this Agreement with respect to any consent, extension, modification or waiver related to any such fee. To the extent that any of the amounts described in ~~clause (i)(B) of~~ the preceding paragraph are collected by the Master ~~Servicer~~Servicer with respect to a Specially Serviced Loan, the Master Servicer shall promptly pay such amounts to the Special Servicer and shall not be required to deposit such amounts in the ~~Collection~~ Certificate Account ~~pursuant to Section 3.04(a). Additional servicing compensation to which~~ or if a Serviced Whole Loan is involved, in the related Serviced Whole Loan Custodial Account. (e) The Master Servicer ~~(or, if so provided by the applicable Sub-Servicing Agreement, any Sub-Servicer retained thereby) is entitled pursuant to Section 3.11(b) in the form of assumption fees, modification fees~~ and ~~any similar fees (excluding Prepayment Premiums) collected by~~ the Special Servicer on Mortgage Loans that are not Specially Serviced Mortgage Loans or REO Loans, or in the form of charges for beneficiary statements or demands and amounts collected for checks returned for insufficient funds with respect to any Mortgage Loans (including, without limitation, Specially Serviced Mortgage Loans), shall be paid promptly to the Master Servicer by the Special Servicer. Notwithstanding anything to the contrary contained herein, any entity acting as Special Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Special Servicer, any or all of the items constituting additional special servicing compensation contemplated by this Section 3.11(d). The Special Servicer shall each be required (subject to Section 3.11(h)) to pay out of its own funds all ~~overhead, general and administrative~~ expenses incurred by it in connection with its servicing activities hereunder (~~including, without limitation,~~ including payment of any amounts due and owing to any Sub-Servicers retained by it (including any termination fees) and the premiums for any blanket policy or the standby fee or similar premium, if any, for any master force placed policy obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the ~~Collection Account~~ Certificate Account, the related Serviced Whole Loan Custodial Account, the Reserve Accounts or ~~the~~ a REO ~~Account~~ Account, and neither the Master Servicer ~~is not required to advance such expenses at the direction of the Special Servicer, and~~ nor the Special Servicer shall ~~not~~ be entitled to reimbursement for any such expense incurred by it except as expressly provided in this Agreement. If the Master Servicer is required to make any Servicing Advance hereunder at the direction of the Special Servicer in accordance with Section 3.03(c), Section 3.19 or otherwise, the Special Servicer shall promptly provide the Master Servicer with such documentation regarding the subject Servicing Advance as the Master Servicer may reasonably request. (ef) If the Master ~~Servicer or Special~~ Servicer is required under this Agreement to make a Servicing Advance, but ~~neither~~ does not do so within 10 ten days after such ~~Servicing~~ Advance is required to be made, the Trustee shall, if it has actual knowledge of such failure on the part of the Master ~~Servicer or Special~~ Servicer~~, as the case may be~~, give notice of such ~~failure, as applicable,~~ failure to the Master ~~Servicer and/or the Special~~ Servicer~~, as appropriate~~. If such ~~Servicing~~ Advance is not made by the Master Servicer ~~or the Special Servicer~~ within three ~~(3)~~ Business Days after such ~~notice~~ notice, then (subject to Section ~~3.11(g~~3.11(h)) ~~below),~~ the Trustee shall make such ~~Servicing~~ Advance. Any failure by the Master ~~Servicer or the Special~~ Servicer to make a Servicing Advance it is required to make hereunder shall constitute an Event of Default by the Master ~~Servicer or the Special~~ Servicer~~, as the case may be~~, subject to and as provided in Section 7.01(a). (fg) ~~As and to the extent permitted by Section 3.05(a), the~~ The Master Servicer, the Special Servicer ~~(to the extent it has not already been reimbursed for any such Servicing Advance by the Master Servicer)~~ and the Trustee shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each ~~Servicing~~ Advance made thereby (out of its own funds) for so long as such Servicing Advance is outstanding, and such interest will be paid: first, out of any Default Charges collected on or in respect of the related Mortgage Loan or REO Loan; and second, at any time coinciding with or following the reimbursement of such Servicing Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Collection Account. As and to the extent provided in Sections 3.03(a) and 3.05(a), the Master Servicer shall reimburse itself, the Special Servicer or the Trustee, as appropriate, for any Servicing Advance made thereby as soon as practicable after funds available for such purpose are deposited in the Collection Account or a Servicing Account. (g) Notwithstanding anything to the contrary set forth herein, none of the Master Servicer, the Special Servicer or the Trustee shall be required to make any Servicing Advance (including, without limitation, an Emergency Advance) that it determines in its reasonable, good faith judgment would constitute a Nonrecoverable Servicing Advance. In addition, Nonrecoverable Servicing Advances shall be reimbursable pursuant to Section 3.05(a)(vii) out of general collections on the Mortgage Pool on deposit in the Collection Account. The determination by the Master Servicer, the Special Servicer or, if applicable, the Trustee, that it has made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced by an Officer's Certificate delivered promptly to the Trustee (or, if applicable, retained thereby), the Sponsor and the Rating Agencies, setting forth the basis for such determination, together with (if such determination is prior to the liquidation of the related Mortgage Loan or REO Property) a copy of an Appraisal of the related Mortgaged Prom

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2007-3)

Servicing Compensation; Interest on Servicing Advances; Payment of Certain Expenses. Obligations of the Trustee and the Fiscal Agent Regarding Back-up Servicing Advances. (a) As compensation for its activities hereunder, the Master Servicer shall be entitled to receive the Master Servicing Fee with respect to each and every Mortgage Loan (including, without limitation, each and every Specially Serviced Mortgage Loan) and REO Loan. As to each Mortgage Loan and REO Loan, the Master Servicing Fee shall accrue from time to time at the applicable Master Servicing Fee Rate on the basis of the same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be changed or modified at any time following the Closing Date) and applicable law~~, and without giving effect to any Excess Interest that may accrue on any Hyper-Amortization Loan after its Anticipated Repayment Date~~. The Master Servicing Fee with respect to any Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in respect thereof. Earned but unpaid Master Servicing Fees shall be payable monthly, on a loan-by-loan basis, from payments of interest on each Mortgage Loan and REO Revenues allocable as interest on each REO Loan. The Master Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of any Mortgage Loan or REO Loan monthly out of ~~Insurance Proceeds or Liquidation Proceeds~~ general collections on the Mortgage Loans and any REO Properties on deposit in the Collection Account pursuant to ~~the extent permitted by~~ Section 3.05(a). The right to receive the Master Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the Master Servicer's responsibilities and obligations under this Agreement or except as provided in Section 3.22(d). The Master Servicer shall, monthly out of its Master Servicing Fee, pay to any Sub-Servicer retained by the Master Servicer such Sub-Servicer's sub-servicing fee (including, without limitation, any Primary Servicing Fee, if applicable), to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. (b) The Master Servicer shall be entitled to receive as additional servicing compensation: (i) all Net Default Charges, assumption fees, modification fees and any similar fees (excluding Prepayment Premiums), if any, actually collected in ~~each case~~ respect of any Mortgage Loan and allocable to the ~~extent actually paid by a Mortgagor with respect to a Mortgage Loan~~ period that is it was not a Specially Serviced Mortgage Loan; (ii) charges for beneficiary statements or demands and amounts collected for checks returned for insufficient funds, to the extent actually paid by a ~~Mortgagor~~ Borrower with respect to any Mortgage Loan; (iii) ~~any~~ all Prepayment Interest ~~Excesses~~ Excesses, if any, collected on the Mortgage Loans (but only to the extent such Prepayment Interest Excesses collected during any Collection Period are greater than all Prepayment Interest Shortfalls incurred in respect of the Mortgage Loans during such Collection Period); and (iv) interest or other income earned on deposits in the Investment Accounts maintained by the Master Servicer, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to any such Investment Account for each Collection Period and, in the case of a Servicing Account or Reserve Account, only to the extent such interest or other income is not required to be paid to any ~~Mortgagor~~ Borrower under applicable law or under the related Mortgage Loan documents); provided that with respect to the items of additional servicing compensation set forth in clauses (i) and (ii) above, the Master Servicer shall, in turn, pay the amounts described therein to the related Sub-Servicer to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. Notwithstanding anything to the contrary contained herein, any entity acting as Master Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Master Servicer, any or all of the items constituting additional servicing compensation contemplated by this Section 3.11(b). The Master Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any Sub-Servicer retained by it and the premiums for any blanket policy insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the Collection Account, and the Master Servicer shall not be entitled to reimbursement therefor except as expressly provided in this Agreement. (c) As compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Special Servicing Fee with respect to each Specially Serviced Mortgage Loan and each REO Loan. As to each Specially Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from time to time at the Special Servicing Fee Rate on the basis of the same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be modified at any time following the Closing Date) and applicable law~~, and without giving effect to any Excess Interest that may accrue on any Hyper- Amortization Loan after its Anticipated Repayment Date~~. The Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO Loan shall cease to accrue as of the date a Liquidation Event occurs in respect thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid Special Servicing Fees shall be payable monthly out of general collections on the Mortgage Loans and any REO Properties on deposit in the Collection Account pursuant to Section 3.05(a). As further compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Workout Fee with respect to each Corrected Mortgage Loan, unless the basis on which such Mortgage Loan became a Corrected Mortgage Loan was the remediation of a circumstance or condition relating to the related Mortgage Loan Seller~~'s or the Additional Warranting Party~~'s obligation to repurchase such Mortgage Loan pursuant to Section 2.03, in which case, if such Mortgage Loan is repurchased within the applicable cure period following the related Mortgage Loan Seller's notice or discovery (whichever occurred earlier) of the Document Defect or breach giving rise to such repurchase obligation, no Workout Fee will be payable from or based upon the receipt of, any Purchase Price paid by the related Mortgage Loan Seller in satisfaction of such repurchase obligation. Furthermore, no Workout Fees will be payable from, or based upon, the receipt of any Liquidation Proceeds paid by any Majority Certificateholder of the Controlling Class, the Master Servicer or the Sole Certificateholder in connection with the purchase of, or the exchange of all the Certificates for, all the Mortgage Loans and any REO Properties in the Trust Fund pursuant to Section 9.01 hereof. As to each Corrected Mortgage Loan, subject to the exceptions provided for in the preceding ~~sentence~~two sentences, the Workout Fee shall be payable from, and shall be calculated by application of the Workout Fee Rate to, each collection of interest (other than Default Interest and, in the case of ~~a Hyper-Amortization~~ an ARD Loan after its Anticipated Repayment Date, ~~Excess~~ Additional Interest) and principal received on such Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with respect to any Corrected Mortgage Loan will cease to be payable if a Servicing Transfer Event occurs with respect thereto or if the related Mortgaged Property becomes an REO Property; provided that a new Workout Fee will become payable if and when such Mortgage Loan again becomes a Corrected Mortgage Loan. If the Special Servicer is terminated other than for cause or resigns in accordance with clause (ii) of the first paragraph of Section 6.04, it shall retain the right to receive any and all Workout Fees payable in respect of Mortgage Loans that became Corrected Mortgage Loans during the period that it acted as Special Servicer and were still such at the time of such termination or resignation (and the successor Special Servicer shall not be entitled to any portion of such Workout Fees), in each case until the Workout Fee for any such Mortgage Loan ceases to be payable in accordance with the preceding sentence. As further compensation for its activities hereunder, the Special Servicer shall also be entitled to receive a Liquidation Fee with respect to each Specially Serviced Mortgage Loan or REO Property as to which it receives any full or discounted payoff from the related ~~Mortgagor~~ Borrower or any Liquidation Proceeds (other than in connection with the purchase of any such Specially Serviced Mortgage Loan or REO Property by the Special Servicer pursuant to Section 3.18, by the Master Servicer or the Majority Certificateholder of the Controlling Class pursuant to Section 3.18 or Section 9.01, or by ~~the Mortgage Loan Seller~~ CREI or ~~the Additional Warranting Party~~ SBRC pursuant to Section 2.03 within ~~120 days~~ the applicable cure period of its discovery or notice (whichever occurred earlier) of the breach or Document Defect that gave rise to the repurchase obligation, ; other than in connection with the acquisition of any such Specially Serviced Mortgage Loan or REO Property by the Sole Certificateholder in exchange for Certificates pursuant to Section 9.01; and other than in connection with the condemnation or other governmental taking of a Mortgaged Property or REO Property). As to each such Specially Serviced Mortgage Loan or REO Property, the Liquidation Fee shall be payable from, and shall be calculated by application of the Liquidation Fee Rate to, such full or discounted payoff and/or such Liquidation Proceeds (excluding any portion of such payoff and/or proceeds that represents accrued but unpaid ~~Excess~~ Additional Interest with respect to ~~a Hyper-Amortization~~ an ARD Loan after its Anticipated Repayment Date or accrued but unpaid Default Interest); provided that no Liquidation Fee will be payable with respect to any such Specially Serviced Mortgage Loan that becomes a Corrected Mortgage Loan; and provided, further, that (without limiting the Special Servicer's right to any Workout Fee that is properly payable therefrom), no Liquidation Fee will be payable from, or based upon the receipt of, Liquidation Proceeds collected as a result of any purchase or other acquisition of a Specially Serviced Mortgage Loan or REO Property described in the parenthetical to the first sentence of this paragraph or in connection with a condemnation or other governmental taking of a Mortgaged Property or REO Property. Notwithstanding anything to the contrary herein, a Liquidation Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid from the same proceeds on or with respect to such Mortgage Loan. The Special Servicer's right to receive the Special Servicing Fee, the Workout Fee and/or the Liquidation Fee may not be transferred in whole or in part except in connection with the transfer of all of the Special Servicer's responsibilities and obligations under this Agreement. (d) The Special Servicer shall be entitled to receive as additional special servicing compensation: (i) (A) to the extent allocable to the period when any Mortgage Loan is a Specially Serviced Mortgage Loan or to the extent allocable to an REO Loan, any Net Default Charges actually collected on such Mortgage Loan or REO Loan, as the case may be, and (B) any assumption fees, modification fees or similar fees (excluding Prepayment Premiums) actually collected on or with respect to Specially Serviced Mortgage Loans or REO Loans; and (ii) interest or other income earned on deposits in the REO Account, if established, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to the REO Account for each Collection Period). To the extent the amounts described in clause (i)(B) of the preceding paragraph are collected by the Master Servicer, the Master Servicer shall promptly pay such amounts to the Special Servicer and shall not be required to deposit such amounts in the Collection Account pursuant to Section 3.04(a). Additional servicing compensation to which the Master Servicer (or, if so provided by the applicable Sub-Servicing Agreement, any Sub-Servicer retained thereby) is entitled pursuant to Section 3.11(b) in the form of assumption fees, modification fees and any similar fees (excluding Prepayment Premiums) collected by the Special Servicer on Mortgage Loans that are not Specially Serviced Mortgage Loans or REO Loans, or in the form of charges for beneficiary statements or demands and amounts collected for checks returned for insufficient funds with respect to any Mortgage Loans (including, without limitation, Specially Serviced Mortgage Loans), shall be paid promptly to the Master Servicer by the Special Servicer. Notwithstanding anything to the contrary contained herein, any entity acting as Special Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Special Servicer, any or all of the items constituting additional special servicing compensation contemplated by this Section 3.11(d). The Special Servicer shall be required to pay out of its own funds all overhead, general and administrative expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any Sub-Servicers retained by it and the premiums for any blanket policy obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the Collection Account or the REO Account and the Master Servicer is not required to advance such expenses at the direction of the Special Servicer, and the Special Servicer shall not be entitled to reimbursement except as expressly provided in this Agreement. (e) If the Master Servicer or Special Servicer is required under this Agreement to make a Servicing Advance, but neither does so within 10 ten (10) days after such Servicing Advance is required to be made, then the ~~Trustee shall~~Trustee, if it has actual knowledge of such failure on the part of the Master Servicer or Special Servicer, as the case may be, shall give notice of such ~~failure, as applicable,~~ failure to the Master Servicer and/or the Special Servicer, as appropriate. If such Servicing Advance is not made by the Master Servicer or the Special Servicer within three (3) Business Days after such notice then (subject to Section 3.11(g) below), the Trustee shall make such Servicing Advance. If the Trustee fails to make any Servicing Advance required to be made under this Section 3.11(e), then (subject to Section 3.11(g) below) the Fiscal Agent shall make such Advance within one (1) Business Day of such failure on the part of the Trustee, whereupon the Trustee shall be deemed not to be in default under this Agreement. Any failure by the Master Servicer or the Special Servicer to make a Servicing Advance it is required to make hereunder shall constitute an Event of Default by the Master Servicer or the Special Servicer, as the case may be, subject to and as provided in Section 7.01(a). (f) As and to the extent permitted by Section 3.05(a), the Master Servicer, the Special Servicer (to the extent it has not already been reimbursed for any such Servicing Advance by the Master Servicer) ), the Trustee and the ~~Trustee~~ Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each Servicing Advance made thereby (out of its own funds) for so long as such Servicing Advance is outstanding, and such interest will be paid: first, out of any Default Charges collected on or in respect of the related Mortgage Loan or REO Loan; and second, at any time coinciding with or following the reimbursement of such Servicing Advance, to the extent that any such Default Charges then on deposit in the Collection Account are insufficient to cover such Advance Interest, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Collection Account. As and to the extent provided in Sections 3.03(a) and 3.05(a), the Master Servicer shall reimburse itself, the Special ~~Servicer~~ Servicer, the Trustee or the ~~Trustee~~Fiscal Agent, as appropriate, for any Servicing Advance made thereby as soon as practicable after funds available for such purpose are deposited in the Collection Account or a Servicing Account. (g) Notwithstanding anything to the contrary set forth herein, none of the Master Servicer, the Special Servicer or the Trustee shall be required to make any Servicing Advance (including, without limitation, an Emergency Advance) that it determines in its reasonable, good faith judgment would constitute a Nonrecoverable Servicing Advance. In addition, Nonrecoverable Servicing Advances shall be reimbursable pursuant to Section 3.05(a)(vii) out of general collections on the Mortgage Pool on deposit in the Collection Account. The determination by the Master Servicer, the Special Servicer or, if applicable, the Trustee, that it has made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced by an Officer's Certificate delivered promptly to the Trustee (or, if applicable, retained thereby), the Sponsor and the Rating Agencies, setting forth the basis for such determination, together with (if such determination is prior to the liquidation of the related Mortgage Loan or REO Property) a copy of an Appraisal of the related Mortgaged ProSpecia

Appears in 1 contract

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

Servicing Compensation; Interest on Servicing Advances; Payment of Certain Expenses. Obligations of the Trustee and Fiscal Agent Regarding Back-up Servicing Advances. (a) As compensation for its activities hereunder, the Master Servicer shall be entitled to receive the Master Servicing Fee with respect to each Mortgage Loan (including, without limitation, each Specially Serviced Mortgage Loan) and REO Loan. As to each such Mortgage Loan and REO Loan, the Master Servicing Fee shall accrue ~~from time to time~~ at the applicable Master Servicing Fee Rate on the basis of the same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be changed or modified at any time following the Closing Date) and applicable law. For the avoidance of doubt, ~~and without giving effect to any Excess Interest~~ the outstanding principal balance of the Blue Cross Loan for purposes of calculating the related Master Servicing Fee is 50% of the amount that ~~may accrue on any Hyper-Amortization~~ the outstanding principal balance of the Loan ~~after~~ (as defined in the Blue Cross Participation Agreement) would be if such Credit Lease Loan were a Mortgage Loan hereunder in its ~~Anticipated Repayment Date~~entirety. The Master Servicing Fee with respect to any Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in respect thereof. Earned but unpaid Master Servicing Fees shall be payable monthly, on a loan-by-loan basis, from payments of interest on each Mortgage Loan and REO Revenues allocable as interest on each REO Loan. The Master Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of any Mortgage Loan or REO Loan out of Insurance Proceeds or Liquidation ~~Proceeds~~ Proceeds, to the extent permitted by Section 3.05(a). The right to receive the Master Servicing Fee may not be transferred in whole or in part except in accordance with the following paragraph, except in connection with the transfer of all of the Master Servicer's responsibilities and obligations under this Agreement or except as provided in Section 3.22(d). The Master Servicer shall, monthly out of its Master Servicing Fee, pay to any Sub-Servicer retained by the Master Servicer such Sub-Servicer's sub-servicing fee (including, without limitation, any Primary Servicing Fee, if applicable), to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. Midland may, at its option, sell or pledge the rights to the "Transferable Portion" (as hereinafter defined) of its Master Servicing Fee; provided that in the event of any resignation or termination of Midland (or any successor thereto) as Master Servicer, the rights of Midland or any transferee of such Transferable Portion shall terminate (except for the right to receive the Excess Portion (as defined below), if any, on any Distribution Date as set forth in the penultimate sentence of this paragraph). In the event of the appointment of a successor Master Servicer, the Trustee shall cooperate with Midland to attempt to appoint a successor (which may be the Trustee) which, subject to the Trustee's satisfaction as to quality of servicing and the best interests of Certificateholders and the requirements of Article VII of this Agreement, will perform the services of the Master Servicer for payment of an amount (the "Successor Servicer Retained Fee") less than the full Master Servicing Fee expressed as a fixed number of basis points such that the Transferable Portion is reduced only to the extent reasonably necessary (in the sole discretion of the Trustee) to provide market rate compensation (except that the Transferable Portion shall be reduced to zero during any period for which the Trustee serves as successor servicer hereunder by reason of a default by the Master Servicer). If, and only if, the successor Master Servicer shall have so agreed to perform such services for less than the full Master Servicing Fee, then while such successor Master Servicer will be entitled to receive the full Master Servicing Fee, it shall pay the excess of the Transferable Portion (which would otherwise be payable) over the Successor Servicer Retained Fee on each Distribution Date (any such excess, the "Excess Portion") to Midland or any transferee of the Transferable Portion, as applicable, at such time and to the extent the Master Servicer is entitled to receive payment of the Master Servicing Fees under this Agreement, notwithstanding any termination of Midland under this Agreement. If the successor Master Servicer shall not have agreed to perform such services for such lesser amount, the rights of Midland or any transferee to the Transferable Portion shall terminate. The "Transferable Portion" of the Master Servicing Fee is the amount by which the Master Servicing Fee exceeds the sum of (i) the Primary Servicing Fee and (ii) the amount of the related Master Servicing Fee calculated using a rate of 0.01% per annum. (b) The Master Servicer shall be entitled to receive as additional servicing compensation: (i) ~~Net~~ Default ~~Charges~~Charges (excluding any Default Interest collected in respect of any Credit Lease Loan), assumption fees, modification ~~fees~~ fees, charges for beneficiary statements or demands and any similar fees (excluding Prepayment Premiums), in each case to the extent actually paid by a Mortgagor with respect to a Mortgage Loan that is not a Specially Serviced Mortgage Loan; (ii) ~~charges for beneficiary statements or demands and~~ amounts collected for checks returned for insufficient funds, to the extent actually paid by a Mortgagor with respect to any Mortgage Loan; (iii) any Prepayment Interest Excesses collected on the Mortgage Loans (but only to the extent such Prepayment Interest Excesses collected during any Collection Period are greater than all Prepayment Interest Shortfalls incurred in respect of the Mortgage Loans during such Collection Period); andLoans; (iv) interest or other income earned on deposits in the ~~Investment Accounts maintained by the Master Servicer~~Certificate Account, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to ~~any such Investment~~ the Certificate Account for each Collection ~~Period~~ Period); and~~, in the case of a Servicing Account or Reserve Account, only~~ (v) to the extent ~~such interest or other income is~~ not required to be paid to any Mortgagor under applicable law or under the related ~~Mortgage Loan documents)~~Mortgage, any Net Investment Earnings on deposits in the Servicing Accounts, Rent Escrow Accounts and Borrower Reserve Funds maintained by the Master Servicer; provided that with respect to the items of additional servicing compensation set forth in clauses (i) and (ii) above, the Master Servicer shall, in turn, pay the amounts described therein to the related Sub-Servicer to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. Notwithstanding anything to the contrary contained herein, any entity acting as Master Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Master Servicer, any or all of the items constituting additional servicing compensation contemplated by this Section 3.11(b). The Master Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any Sub-Servicer retained by it and the premiums for any blanket policy insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the ~~Collection~~ Certificate Account, and the Master Servicer shall not be entitled to reimbursement therefor except as expressly provided in this Agreement. (c) As compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Special Servicing Fee with respect to each Specially Serviced Mortgage Loan and each REO Loan; provided, however, for the avoidance of doubt, the Special Servicer shall not be entitled to a Special Servicing Fee with respect to the Blue Cross Loan notwithstanding that the Blue Cross Loan may have become a Specially Serviced Mortgage Loan. As to each Specially Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from time to time at the Special Servicing Fee Rate on the basis of the same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be modified at any time following the Closing Date) and applicable law~~, and without giving effect to any Excess Interest that may accrue on any Hyper- Amortization Loan after its Anticipated Repayment Date~~. The Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO Loan shall cease to accrue as of the date a Liquidation Event occurs in respect thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid Special Servicing Fees shall be payable monthly out of general collections on the Mortgage Loans and any REO Properties on deposit in the ~~Collection~~ Certificate Account pursuant to Section 3.05(a). As further compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Workout Fee with respect to each Corrected Mortgage Loan, unless (i) the basis on which such Mortgage Loan became a Corrected Mortgage Loan was the remediation of a circumstance or condition relating to the related Mortgage Loan Seller~~'s or the Additional Warranting Party~~'s obligation to repurchase such Mortgage Loan pursuant to Section 2.03, in which case, if such Mortgage Loan is repurchased within the 120-day period described in Section 2.03(a), no Workout Fee will be payable from or based upon the receipt of, any Purchase Price paid by the related Mortgage Loan Seller in satisfaction of such repurchase obligation; or (ii) the related Mortgage Loan became a Specially Serviced Mortgage Loan solely as a result of the event described in clause (i) of the definition of Specially Serviced Mortgage Loan. Furthermore, no Workout Fees will be payable from or based upon the receipt of any Liquidation Proceeds paid by any Majority Certificateholder of the Controlling Class or the Master Servicer in connection with the purchase of all the Mortgage Loans and any REO Properties in the Trust Fund pursuant to Section 9.01 hereof. As to each Corrected Mortgage Loan, subject to the exceptions provided for in the two preceding ~~sentence~~sentences, the Workout Fee shall be payable from, and shall be calculated by application of the Workout Fee Rate to, each collection of interest (other than Default ~~Interest and, in the case of a Hyper-Amortization Loan after its Anticipated Repayment Date, Excess~~ Interest) and principal received on such Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with respect to any Corrected Mortgage Loan will cease to be payable if a Servicing Transfer Event occurs with respect thereto or if the related Mortgaged Property becomes an REO Property; provided that a new Workout Fee will become payable if and when such Mortgage Loan again becomes a Corrected Mortgage Loan. If the Special Servicer is terminated other than for cause or resigns in accordance with clause (ii) of the first paragraph of Section 6.04, it shall retain the right to receive any and all Workout Fees payable in respect of Mortgage Loans that became Corrected Mortgage Loans during the period that it acted as Special Servicer and were still such at the time of such termination or resignation (and the successor Special Servicer shall not be entitled to any portion of such Workout Fees), in each case until the Workout Fee for any such Mortgage Loan ceases to be payable in accordance with the preceding sentence. As further compensation for its activities hereunder, the Special Servicer shall also be entitled to receive a Liquidation Fee with respect to each Specially Serviced Mortgage Loan or REO Property as to which it receives any full or discounted payoff from the related Mortgagor or any Liquidation Proceeds (other than in connection with the purchase of any such Specially Serviced Mortgage Loan or REO Property by the Special Servicer pursuant to Section 3.18, by the Master Servicer or the Majority Certificateholder of the Controlling Class pursuant to Section 3.18 or Section 9.01, or by the related Mortgage Loan Seller ~~or the Additional Warranting Party~~ pursuant to Section 2.03 within 120 days of its discovery or notice ~~(whichever occurred earlier)~~ of the breach or Document Defect that gave rise to the repurchase obligation, and other than in connection with the condemnation or other governmental taking of a Mortgaged Property or REO Property). As to each such Specially Serviced Mortgage Loan or REO Property, the Liquidation Fee shall be payable from, and shall be calculated by application of the Liquidation Fee Rate to, such full or discounted payoff and/or ~~such~~ Liquidation Proceeds (excluding any portion of such payoff and/or proceeds that represents ~~accrued but unpaid Excess Interest with respect to a Hyper-Amortization Loan after its Anticipated Repayment Date or~~ accrued but unpaid Default Interest); provided that no Liquidation Fee will be payable with respect to any such Specially Serviced Mortgage Loan that becomes a Corrected Mortgage Loan; and provided, further, that (without limiting the Special Servicer's right to any Workout Fee that is properly payable therefrom), no Liquidation Fee will be payable from, or based upon the receipt of, Liquidation Proceeds collected as a result of any purchase of a Specially Serviced Mortgage Loan or REO Property described in the parenthetical to the first sentence of this paragraph or in connection with a condemnation or other governmental taking of a Mortgaged Property or REO Property. Notwithstanding anything to the contrary herein, a Liquidation Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid from the same proceeds on or with respect to such Mortgage Loan. The Special Servicer's right to receive the Special Servicing Fee, the Workout Fee and/or the Liquidation Fee may not be transferred in whole or in part except in connection with the transfer of all of the Special Servicer's responsibilities and obligations under this Agreement. (d) The Special Servicer shall be entitled to receive as additional special servicing compensation: (i) (A) to the extent allocable to the period when any Mortgage Loan is a Specially Serviced Mortgage Loan or to the extent allocable to an REO Loan, any Net Default Charges (excluding any Default Interest collected in respect of any Credit Lease Loan) actually collected on such Mortgage Loan or REO Loan, as the case may be, and (B) ~~any~~ assumption fees, modification ~~fees~~ fees, charges for beneficiary statements or demands and any similar fees (excluding Prepayment Premiums) actually collected on or with respect to Specially Serviced Mortgage Loans or REO Loans; and (ii) interest or other income earned on deposits in the REO Account, if established, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to the REO Account for each Collection Period). To the extent the amounts described in clause (i)(B) of the preceding paragraph are collected by the Master Servicer, the Master Servicer shall promptly pay such amounts to the Special Servicer and shall not be required to deposit such amounts in the ~~Collection~~ Certificate Account pursuant to Section 3.04(a). Additional servicing compensation to which the Master Servicer (or, if so provided by the applicable Sub-Servicing Agreement, any Sub-Servicer retained thereby) is entitled pursuant to Section 3.11(b) in the form of assumption fees, modification ~~fees~~ fees, charges for beneficiary statements or demands and any similar fees (excluding Prepayment Premiums) collected by the Special Servicer on Mortgage Loans that are not Specially Serviced Mortgage Loans or REO Loans, or in the form of ~~charges for beneficiary statements or demands and~~ amounts collected for checks returned for insufficient funds with respect to any Mortgage Loans (including, without limitation, Specially Serviced Mortgage Loans), shall be paid promptly to the Master Servicer by the Special Servicer. Notwithstanding anything to the contrary contained herein, any entity acting as Special Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Special Servicer, any or all of the items constituting additional special servicing compensation contemplated by this Section 3.11(d). The Special Servicer shall be required to pay out of its own funds all overhead, general and administrative expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any Sub-Servicers retained by it and the premiums for any blanket policy obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the ~~Collection~~ Certificate Account or the REO Account and the Master Servicer is not required to advance such expenses at the direction of the Special Servicer, and the Special Servicer shall not be entitled to reimbursement except as expressly provided in this Agreement. (e) If the Master Servicer or Special Servicer is required under this Agreement to make a Servicing Advance, but neither does so within 10 15 days after such Servicing Advance is required to be made, the Trustee shall, if it has actual knowledge of such failure on the part of the Master Servicer or Special Servicer, as the case may be, give notice of such failure, as applicable, to the Master Servicer and/or the Special Servicer~~, as appropriate~~. If such Servicing Advance is not made by the Master Servicer or the Special Servicer within three (3) Business Days after such notice then (subject to Section 3.11(g) below), the Trustee shall make such Servicing Advance. Any failure by the Master Servicer or the Special Servicer to make a Servicing Advance it is required to make hereunder shall constitute an Event of Default by the Master Servicer or the Special Servicer, as the case may be, subject to and as provided in Section 7.01(a). (f) As and to the extent permitted by Section 3.05(a), the Master Servicer, the Special Servicer (to the extent it has not already been reimbursed for any such Servicing Advance by the Master Servicer) and the Trustee shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each Servicing Advance made thereby (out of its own funds) for so long as such Servicing Advance is outstanding, and such interest will be paid: first, out of any Default Charges collected on or in respect of the related Mortgage Loan or REO Loan; and second, at any time coinciding with or following the reimbursement of such Servicing Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Collection Account. As and to the extent provided in Sections 3.03(a) and 3.05(a), the Master Servicer shall reimburse itself, the Special Servicer or the Trustee, as appropriate, for any Servicing Advance made thereby as soon as practicable after funds available for such purpose are deposited in the Collection Account or a Servicing Account. (g) Notwithstanding anything to the contrary set forth herein, none of the Master Servicer, the Special Servicer or the Trustee shall be required to make any Servicing Advance (including, without limitation, an Emergency Advance) that it determines in its reasonable, good faith judgment would constitute a Nonrecoverable Servicing Advance. In addition, Nonrecoverable Servicing Advances shall be reimbursable pursuant to Section 3.05(a)(vii) out of general collections on the Mortgage Pool on deposit in the Collection Account. The determination by the Master Servicer, the Special Servicer or, if applicable, the Trustee, that it has made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced by an Officer's Certificate delivered promptly to the Trustee (or, if applicable, retained thereby), the Sponsor and the Rating Agencies, setting forth the basis for such determination, together with (if such determination is prior to the liquidation of the related Mortgage Loan or REO Property) a copy of an Appraisal of the related Mortgaged Proone Business

Appears in 1 contract

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

Servicing Compensation; Interest on Servicing Advances; Payment of Certain Expenses. Obligations of the Trustee and Fiscal Agent Regarding Back-up Servicing Advances. (a) As compensation for its activities hereunder, the Master Servicer shall be entitled to receive the Master Servicing Fee with respect to each Mortgage Loan (including, without limitation, each Specially Serviced Mortgage Loan) and REO Loan. As to each such Mortgage Loan and REO Loan, the Master Servicing Fee shall accrue ~~from time to time~~ at the applicable Master Servicing Fee Rate on the basis of the same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be changed or modified at any time following the Closing Date) and applicable law~~, and without giving effect to any Excess Interest that may accrue on any Hyper-Amortization Loan after its Anticipated Repayment Date~~. The Master Servicing Fee with respect to any Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in respect thereof. Earned but unpaid Master Servicing Fees shall be payable monthly, on a loan-by-loan basis, from payments of interest on each Mortgage Loan and REO Revenues allocable as interest on each REO Loan. The Master Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of any Mortgage Loan or REO Loan out of Insurance Proceeds, Liquidation Proceeds or ~~Liquidation Proceeds~~ Workout 103 Proceeds, to the extent permitted by Section 3.05(a). The right to receive the Master Servicing Fee may not be transferred in whole or in part except in accordance with the following paragraph, except in connection with the transfer of all of the Master Servicer's responsibilities and obligations under this Agreement or except as provided in Section 3.22(d). The Master Servicer shall, monthly out of its Master Servicing Fee, pay to any Sub-Servicer retained by the Master Servicer such Sub-Servicer's sub-servicing fee (including, without limitation, any Primary Servicing Fee, if applicable), to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. Notwithstanding anything herein to the contrary, Midland may at its option assign or pledge to any third party or retain for itself the Transferable Portion; provided, however, that in the event of any resignation or termination of Midland as Master Servicer hereunder, all or any portion of the Transferable Portion (as hereinafter defined) may be reduced by the Trustee to the extent reasonably necessary (in the sole discretion of the Trustee) for the Trustee to obtain a qualified successor Master Servicer (which successor may include the Trustee) which, subject to the Trustee's satisfaction as to quality of servicing and the best interests of Certificateholders and the Certificate Insurer as potential or current subrogee of the Class A Certificateholders and the requirements of Section 6.04 and Article VII of this Agreement, will perform the services of the Master Servicer for payment of an amount (the "Successor Servicer Retained Fee") less than the full Master Servicing Fee expressed as a fixed number of basis points such that the Transferable Portion is reduced only to the extent reasonably necessary (in the sole discretion of the Trustee) to provide market rate compensation (except that the Transferable Portion shall be reduced to zero during any period for which the Trustee serves as successor servicer hereunder by reason of a default by the Master Servicer). If, and only if, the successor Master Servicer shall have so agreed to perform such services for less than the full Master Servicing Fee, then while such successor Master Servicer will be entitled to receive the full Master Servicing Fee, it shall pay the excess of the Master Servicing Fee (which would otherwise be payable) over the Successor Servicer Retained Fee on each Distribution Date to Midland or any transferee of the Transferable Portion, as applicable, at such time and to the extent the Master Servicer is entitled to receive payment of the Master Servicing Fees under this Agreement, notwithstanding any termination of Midland under this Agreement. If the successor Master Servicer shall not have agreed to perform such services for such lesser amount, the rights of Midland or any transferee to the Transferable Portion shall terminate. The "Transferable Portion" of the Master Servicing Fee, subject to reduction by the Trustee as stated above, is the amount by which the Master Servicing Fee exceeds the sum of (i) the Primary Servicing Fee and (ii) the amount of the related Master Servicing Fee calculated using a rate of 0.01% per annum. (b) The Master Servicer shall be entitled to receive as additional servicing compensation: (i) Net Default ~~Charges~~Interest, assumption and assignment fees, late fees, modification ~~fees~~ fees, extension fees, charges for beneficiary statements or demands and any similar fees (excluding Prepayment Premiums), in each case to the extent actually paid by a Mortgagor with respect to the period a Mortgage Loan ~~that~~ is not a Specially Serviced Mortgage Loan, determined with respect to Net Default Interest by taking all Net Default Interest received 104 with respect to such Mortgage Loan and allocating pro rata between the Master Servicer and Special Servicer based on the days such Mortgage Loan was and was not a Specially Serviced Mortgage Loan at the time such Net Default Interest was received; (ii) ~~charges for beneficiary statements or demands and~~ amounts collected for checks returned for insufficient funds, to the extent actually paid by a Mortgagor with respect to any Mortgage Loan; (iii) any Prepayment Interest Excesses collected on the Mortgage Loans (but only to the extent such Prepayment Interest Excesses collected during any Collection Period are greater than all Prepayment Interest Shortfalls incurred in respect of the Mortgage Loans during such Collection Period); andLoans; (iv) interest or other income earned on deposits in the ~~Investment Accounts maintained by the Master Servicer~~Certificate Account, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to ~~any such Investment~~ the Certificate Account for each Collection ~~Period~~ Period); and~~, in the case of a Servicing Account or Reserve Account, only~~ (v) to the extent ~~such interest or other income is~~ not required to be paid to any Mortgagor under applicable law or under the related ~~Mortgage Loan documents)~~Mortgage, any Net Investment Earnings on deposits in the Rent Escrow Accounts and Borrower Reserve Funds maintained by the Master Servicer; provided that with respect to the items of additional servicing compensation set forth in ill clauses (i) and (ii) above, the Master Servicer shall, in turn, pay the amounts described therein to the related Sub-Servicer to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. Notwithstanding anything to the contrary contained herein, any entity acting as Master Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Master Servicer, any or all of the items constituting additional servicing compensation contemplated by this Section 3.11(b). The Master Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any Sub-Servicer retained by it and the premiums for any blanket policy insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the ~~Collection~~ Certificate Account, and the Master Servicer shall not be entitled to reimbursement therefor except as expressly provided in this Agreement. (c) As compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Special Servicing Fee with respect to each Specially Serviced Mortgage Loan and each REO Loan. As to each Specially Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from time to time at the Special Servicing Fee Rate on the basis of the same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be modified at any time following the Closing Date) and applicable law~~, and without giving effect to any Excess Interest that may accrue on any Hyper- Amortization Loan after its Anticipated Repayment Date~~. The Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO Loan shall cease to accrue as of the date a Liquidation Event occurs in respect thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid Special Servicing Fees shall be payable monthly out of general collections on the Mortgage Loans and any REO Properties on deposit in the ~~Collection~~ Certificate Account pursuant to Section 3.05(a). 105 As further compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Workout Fee with respect to each Corrected Mortgage Loan, unless (i) the basis on which such Mortgage Loan became a Corrected Mortgage Loan was the remediation of a circumstance or condition relating to the related Mortgage Loan ~~Seller's or the Additional Warranting Party's~~ Sellers' obligation to repurchase such Mortgage Loan pursuant to Section ~~2.03~~2.03 or the terms of the Mortgage Loan Purchase and Sale Agreement, in which case, if such Mortgage Loan is repurchased within the 120-day period described in Section 2.03(a) or the terms of the Mortgage Loan Purchase and Sale Agreement, no Workout Fee will be payable from or based upon the receipt of, any Purchase Price paid by the related Mortgage Loan Sellers in satisfaction of such repurchase obligation; or (ii) the related Mortgage Loan became a Specially Serviced Mortgage Loan solely as a result of the event described in clause (i) of the definition of Specially Serviced Mortgage Loan. Furthermore, no Workout Fees will be payable from or based upon the receipt of any Liquidation Proceeds paid by any Majority Certificateholder of the Controlling Class or the Master Servicer in connection with the purchase of all the Mortgage Loans and any REO Properties in the Trust Fund pursuant to Section 9.01 hereof. As to each Corrected Mortgage Loan, subject to the exceptions provided for in the two preceding ~~sentence~~sentences, the Workout Fee shall be payable from, and shall be calculated by application of the Workout Fee Rate to, each collection of interest (other than Default ~~Interest and, in the case of a Hyper-Amortization Loan after its Anticipated Repayment Date, Excess~~ Interest) and principal received on such Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with respect to any Corrected Mortgage Loan will cease to be payable if a Servicing Transfer Event occurs with respect thereto or if the related Mortgaged Property becomes an REO Property; provided that a new Workout Fee will become payable if and when such Mortgage Loan again becomes a Corrected Mortgage Loan. If the Special Servicer is terminated other than for cause or resigns in accordance with clause (ii) of the first paragraph of Section 6.04, it shall retain the right to receive any and all Workout Fees payable in respect of Mortgage Loans that became Corrected Mortgage Loans during the period that it acted as Special Servicer and were still such at the time of such termination or resignation (and the successor Special Servicer shall not be entitled to any portion of such Workout Fees), in each case until the Workout Fee for any such Mortgage Loan ceases to be payable in accordance with the preceding sentence. As further compensation for its activities hereunder, the Special Servicer shall also be entitled to receive a Liquidation Fee with respect to each Specially Serviced Mortgage Loan or REO Property as to which it receives any full or discounted payoff from the related Mortgagor or any Liquidation Proceeds (other than in connection with the purchase of any such Specially Serviced Mortgage Loan or REO Property by the Special Servicer pursuant to Section 3.18, by the Master Servicer or the Majority Certificateholder of the Controlling Class pursuant to Section 3.18 or Section 9.01, or by the related Mortgage Loan ~~Seller or the Additional Warranting Party~~ Sellers pursuant to Section 2.03 or the terms of the Mortgage Loan Purchase and Sale Agreement within 120 days of its discovery or notice ~~(whichever occurred earlier)~~ of the breach or Document Defect that gave rise to the repurchase obligation, and other than in connection with the condemnation or other governmental taking of a Mortgaged Property or REO Property). As to each such Specially Serviced Mortgage Loan or REO Property, the Liquidation Fee shall be payable from, and shall be calculated by application of the Liquidation Fee Rate to, such full or discounted payoff and/or ~~such~~ Liquidation Proceeds (excluding any portion of such payoff and/or proceeds that represents accrued but unpaid ~~Excess Interest with respect to a Hyper-Amortization Loan after its Anticipated Repayment Date or accrued but unpaid~~ Default Interest); provided that no Liquidation Fee will 106 be payable with respect to any such Specially Serviced Mortgage Loan that becomes a Corrected Mortgage Loan; and provided, further, that (without limiting the Special Servicer's right to any Workout Fee that is properly payable therefrom), no Liquidation Fee will be payable from, or based upon the receipt of, Liquidation Proceeds collected as a result of any purchase of a Specially Serviced Mortgage Loan or REO Property described in the parenthetical to the first sentence of this paragraph or in connection with a condemnation or other governmental taking of a Mortgaged Property or REO Property. Notwithstanding anything to the contrary herein, a Liquidation Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid from the same proceeds on or with respect to such Mortgage Loan. The Special Servicer's right to receive the Special Servicing Fee, the Workout Fee and/or the Liquidation Fee may not be transferred in whole or in part except in connection with the transfer of all of the Special Servicer's responsibilities and obligations under this Agreement. (d) The Special Servicer shall be entitled to receive as additional special servicing compensation: (i) (A) to the extent allocable to the period when any Mortgage Loan is a Specially Serviced Mortgage Loan or to the extent allocable to an REO ~~Loan~~Loan (allocated between the period the Mortgage Loan was and was not a Specially Serviced Mortgage Loan in accordance with Section 3.11(b)(i)), any Net Default ~~Charges~~ Interest actually collected on such Mortgage Loan or REO Loan, as the case may be, and (B) ~~any~~ assumption and assignment fees, late fees, modification ~~fees~~ fees, extension fees, charges for beneficiary statements or demands and any similar fees (excluding Prepayment Premiums) actually collected on or with respect to Specially Serviced Mortgage Loans or REO Loans; and (ii) interest or other income earned on deposits in the REO Account, if established, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to the REO Account for each Collection Period). To the extent the amounts described in clause (i)(B) of the preceding paragraph are collected by the Master Servicer, the Master Servicer shall promptly pay such amounts to the Special Servicer and shall not be required to deposit such amounts in the ~~Collection~~ Certificate Account pursuant to Section 3.04(a). Additional servicing compensation to which the Master Servicer (or, if so provided by the applicable Sub-Servicing Agreement, any Sub-Servicer retained thereby) is entitled pursuant to Section 3.11(b) in the form of assumption fees, modification ~~fees~~ fees, charges for beneficiary statements or demands and any similar fees (excluding Prepayment Premiums) collected by the Special Servicer on Mortgage Loans that are not Specially Serviced Mortgage Loans or REO Loans, or in the form of ~~charges for beneficiary statements or demands and~~ amounts collected for checks returned for insufficient funds with respect to any Mortgage Loans (including, without limitation, Specially Serviced Mortgage Loans), shall be paid promptly to the Master Servicer by the Special Servicer. Notwithstanding anything to the contrary contained herein, any entity acting as Special Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Special Servicer, any or all of the items constituting additional special servicing compensation contemplated by this Section 3.11(d). 107 The Special Servicer shall be required to pay out of its own funds all overhead, general and administrative expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any ~~Sub-~~Sub- Servicers retained by it and the premiums for any blanket policy obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the ~~Collection~~ Certificate Account or the REO Account and the Master Servicer is not required to advance such expenses at the direction of the Special Servicer, and the Special Servicer shall not be entitled to reimbursement except as expressly provided in this Agreement. (e) If the Master Servicer or Special Servicer is required under this Agreement to make a Servicing Advance, but neither does so within 10 15 days after such Servicing Advance is required to be made, the Trustee shall, if it has actual knowledge of such failure on the part of the Master Servicer or Special Servicer, as the case may be, give notice of such failure, as applicable, to the Master Servicer and/or the Special Servicer~~, as appropriate~~. If such Servicing Advance is not made by the Master Servicer or the Special Servicer within three (3) Business Days after such notice then (subject to Section 3.11(g) below), the Trustee shall make such Servicing Advance. Any failure by the Master Servicer or the Special Servicer to make a Servicing Advance it is required to make hereunder shall constitute an Event of Default by the Master Servicer or the Special Servicer, as the case may be, subject to and as provided in Section 7.01(a). (f) As and to the extent permitted by Section 3.05(a), the Master Servicer, the Special Servicer (to the extent it has not already been reimbursed for any such Servicing Advance by the Master Servicer) and the Trustee shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each Servicing Advance made thereby (out of its own funds) for so long as such Servicing Advance is outstanding, and such interest will be paid: first, out of any Default Charges collected on or in respect of the related Mortgage Loan or REO Loan; and second, at any time coinciding with or following the reimbursement of such Servicing Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Collection Account. As and to the extent provided in Sections 3.03(a) and 3.05(a), the Master Servicer shall reimburse itself, the Special Servicer or the Trustee, as appropriate, for any Servicing Advance made thereby as soon as practicable after funds available for such purpose are deposited in the Collection Account or a Servicing Account. (g) Notwithstanding anything to the contrary set forth herein, none of the Master Servicer, the Special Servicer or the Trustee shall be required to make any Servicing Advance (including, without limitation, an Emergency Advance) that it determines in its reasonable, good faith judgment would constitute a Nonrecoverable Servicing Advance. In addition, Nonrecoverable Servicing Advances shall be reimbursable pursuant to Section 3.05(a)(vii) out of general collections on the Mortgage Pool on deposit in the Collection Account. The determination by the Master Servicer, the Special Servicer or, if applicable, the Trustee, that it has made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced by an Officer's Certificate delivered promptly to the Trustee (or, if applicable, retained thereby), the Sponsor and the Rating Agencies, setting forth the basis for such determination, together with (if such determination is prior to the liquidation of the related Mortgage Loan or REO Property) a copy of an Appraisal of the related Mortgaged ProSe

Appears in 1 contract

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

Servicing Compensation; Interest on Servicing Advances; Payment of Certain Expenses. Obligations of the Trustee Regarding Back-up Servicing Advances. (a) As compensation for its activities hereunder, the Master Servicer shall be entitled to receive the Master Servicing Fee with respect to each Mortgage Loan (including, without limitation, each Specially Serviced Mortgage Loan) and REO Loan. As to each such Mortgage Loan and REO Loan, the Master Servicing Fee shall accrue ~~from time to time~~ at the applicable Master Servicing Fee Rate on the basis of the same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be changed or modified at any time following the Closing Date) and applicable law, and without giving effect to any ~~Excess~~ Additional Interest that may accrue on any Hyper-Amortization Loan after its Anticipated Repayment Date. The Master Servicing Fee with respect to any Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in respect thereof. Earned but unpaid Master Servicing Fees shall be payable monthly, on a loan-by-loan basis, from payments of interest on each Mortgage Loan and REO Revenues allocable as interest on each REO Loan. The Master Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of any Mortgage Loan or REO Loan out of Insurance Proceeds or Liquidation ~~Proceeds~~ Proceeds, to the extent permitted by Section 3.05(a). The right to receive the Master Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the Master Servicer's responsibilities and obligations under this Agreement or except as provided in Section 3.22(d). The Master Servicer shall, monthly out of its Master Servicing Fee, pay to any Sub-Servicer retained by the Master Servicer such Sub-Servicer's sub-servicing fee (including, without limitation, any Primary Servicing Fee, if applicable), to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. (b) The Master Servicer shall be entitled to receive as additional servicing compensation: (i) ~~Net~~ Default Charges, assumption fees, modification ~~fees~~ fees, charges for beneficiary statements or demands and any similar fees (excluding Prepayment Premiums), in each case to the extent actually paid by a Mortgagor with respect to a Mortgage Loan that is not a Specially Serviced Mortgage Loan; (ii) ~~charges for beneficiary statements or demands and~~ amounts collected for checks returned for insufficient funds, to the extent actually paid by a Mortgagor with respect to any Mortgage Loan; (iii) any Prepayment Interest Excesses collected on the Mortgage Loans (but only to the extent such Prepayment Interest Excesses collected during any Collection Period are greater than all Prepayment Interest Shortfalls incurred in respect of the Mortgage Loans during such Collection Period); andLoans; (iv) interest or other income earned on deposits in the ~~Investment Accounts maintained by the Master Servicer~~Certificate Account, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to ~~any such Investment~~ the Certificate Account for each Collection ~~Period~~ Period); and~~, in the case of a Servicing Account or Reserve Account, only~~ (v) to the extent ~~such interest or other income is~~ not required to be paid to any Mortgagor under applicable law or under the related ~~Mortgage Loan documents)~~Mortgage, any interest or other income earned on deposits in the Servicing Accounts maintained by the Master Servicer; provided that with respect to the items of additional servicing compensation set forth in clauses (i) and (ii) above, the Master Servicer shall, in turn, pay the amounts described therein to the related Sub-Servicer to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. Notwithstanding anything to the contrary contained herein, any entity acting as Master Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Master Servicer, any or all of the items constituting additional servicing compensation contemplated by this Section 3.11(b). The Master Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any Sub-Servicer retained by it and the premiums for any blanket policy insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the ~~Collection~~ Certificate Account, and the Master Servicer shall not be entitled to reimbursement therefor except as expressly provided in this Agreement. (c) As compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Special Servicing Fee with respect to each Specially Serviced Mortgage Loan and each REO Loan. As to each Specially Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from time to time at the Special Servicing Fee Rate on the basis of the same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be modified at any time following the Closing Date) and applicable law, and without giving effect to any ~~Excess~~ Additional Interest that may accrue on any ~~Hyper-~~ Hyper-Amortization Loan after its Anticipated Repayment Date. The Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO Loan shall cease to accrue as of the date a Liquidation Event occurs in respect thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid Special Servicing Fees shall be payable monthly out of general collections on the Mortgage Loans and any REO Properties on deposit in the Collection Account pursuant to Section 3.05(a). As further compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Workout Fee with respect to each Corrected Mortgage Loan, unless the basis on which such Mortgage Loan became a Corrected Mortgage Loan was the remediation of a circumstance or condition relating to the Mortgage Loan Seller's or the Additional Warranting Party's obligation to repurchase such Mortgage Loan pursuant to Section 2.03. As to each Corrected Mortgage Loan, subject to the exceptions provided for in the preceding sentence, the Workout Fee shall be payable from, and shall be calculated by application of the Workout Fee Rate to, each collection of interest (other than Default Interest and, in the case of a Hyper-Amortization Loan after its Anticipated Repayment Date, Excess Interest) and principal received on such Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with respect to any Corrected Mortgage Loan will cease to be payable if a Servicing Transfer Event occurs with respect thereto or if the related Mortgaged Property becomes an REO Property; provided that a new Workout Fee will become payable if and when such Mortgage Loan again becomes a Corrected Mortgage Loan. If the Special Servicer is terminated other than for cause or resigns in accordance with clause (ii) of the first paragraph of Section 6.04, it shall retain the right to receive any and all Workout Fees payable in respect of Mortgage Loans that became Corrected Mortgage Loans during the period that it acted as Special Servicer and were still such at the time of such termination or resignation (and the successor Special Servicer shall not be entitled to any portion of such Workout Fees), in each case until the Workout Fee for any such Mortgage Loan ceases to be payable in accordance with the preceding sentence. As further compensation for its activities hereunder, the Special Servicer shall also be entitled to receive a Liquidation Fee with respect to each Specially Serviced Mortgage Loan or REO Property as to which it receives any full or discounted payoff from the related Mortgagor or any Liquidation Proceeds (other than in connection with the purchase of any such Specially Serviced Mortgage Loan or REO Property by the Special Servicer pursuant to Section 3.18, by the Master Servicer or the Majority Certificateholder of the Controlling Class pursuant to Section 3.18 or Section 9.01, or by the Mortgage Loan Seller or the Additional Warranting Party pursuant to Section 2.03 within 120 days of its discovery or notice (whichever occurred earlier) of the breach or Document Defect that gave rise to the repurchase obligation, and other than in connection with the condemnation or other governmental taking of a Mortgaged Property or REO Property). As to each such Specially Serviced Mortgage Loan or REO Property, the Liquidation Fee shall be payable from, and shall be calculated by application of the Liquidation Fee Rate to, such full or discounted payoff and/or such Liquidation Proceeds (excluding any portion of such payoff and/or proceeds that represents accrued but unpaid Excess Interest with respect to a Hyper-Amortization Loan after its Anticipated Repayment Date or accrued but unpaid Default Interest); provided that no Liquidation Fee will be payable with respect to any such Specially Serviced Mortgage Loan that becomes a Corrected Mortgage Loan; and provided, further, that (without limiting the Special Servicer's right to any Workout Fee that is properly payable therefrom), no Liquidation Fee will be payable from, or based upon the receipt of, Liquidation Proceeds collected as a result of any purchase of a Specially Serviced Mortgage Loan or REO Property described in the parenthetical to the first sentence of this paragraph or in connection with a condemnation or other governmental taking of a Mortgaged Property or REO Property. Notwithstanding anything to the contrary herein, a Liquidation Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid from the same proceeds on or with respect to such Mortgage Loan. The Special Servicer's right to receive the Special Servicing Fee, the Workout Fee and/or the Liquidation Fee may not be transferred in whole or in part except in connection with the transfer of all of the Special Servicer's responsibilities and obligations under this Agreement. (d) The Special Servicer shall be entitled to receive as additional special servicing compensation: (i) (A) to the extent allocable to the period when any Mortgage Loan is a Specially Serviced Mortgage Loan or to the extent allocable to an REO Loan, any Net Default Charges actually collected on such Mortgage Loan or REO Loan, as the case may be, and (B) any assumption fees, modification fees or similar fees (excluding Prepayment Premiums) actually collected on or with respect to Specially Serviced Mortgage Loans or REO Loans; and (ii) interest or other income earned on deposits in the REO Account, if established, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to the REO Account for each Collection Period). To the extent the amounts described in clause (i)(B) of the preceding paragraph are collected by the Master Servicer, the Master Servicer shall promptly pay such amounts to the Special Servicer and shall not be required to deposit such amounts in the Collection Account pursuant to Section 3.04(a). Additional servicing compensation to which the Master Servicer (or, if so provided by the applicable Sub-Servicing Agreement, any Sub-Servicer retained thereby) is entitled pursuant to Section 3.11(b) in the form of assumption fees, modification fees and any similar fees (excluding Prepayment Premiums) collected by the Special Servicer on Mortgage Loans that are not Specially Serviced Mortgage Loans or REO Loans, or in the form of charges for beneficiary statements or demands and amounts collected for checks returned for insufficient funds with respect to any Mortgage Loans (including, without limitation, Specially Serviced Mortgage Loans), shall be paid promptly to the Master Servicer by the Special Servicer. Notwithstanding anything to the contrary contained herein, any entity acting as Special Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Special Servicer, any or all of the items constituting additional special servicing compensation contemplated by this Section 3.11(d). The Special Servicer shall be required to pay out of its own funds all overhead, general and administrative expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any Sub-Servicers retained by it and the premiums for any blanket policy obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the Collection Account or the REO Account and the Master Servicer is not required to advance such expenses at the direction of the Special Servicer, and the Special Servicer shall not be entitled to reimbursement except as expressly provided in this Agreement. (e) If the Master Servicer or Special Servicer is required under this Agreement to make a Servicing Advance, but neither does so within 10 days after such Servicing Advance is required to be made, the Trustee shall, if it has actual knowledge of such failure on the part of the Master Servicer or Special Servicer, as the case may be, give notice of such failure, as applicable, to the Master Servicer and/or the Special Servicer, as appropriate. If such Servicing Advance is not made by the Master Servicer or the Special Servicer within three (3) Business Days after such notice then (subject to Section 3.11(g) below), the Trustee shall make such Servicing Advance. Any failure by the Master Servicer or the Special Servicer to make a Servicing Advance it is required to make hereunder shall constitute an Event of Default by the Master Servicer or the Special Servicer, as the case may be, subject to and as provided in Section 7.01(a). (f) As and to the extent permitted by Section 3.05(a), the Master Servicer, the Special Servicer (to the extent it has not already been reimbursed for any such Servicing Advance by the Master Servicer) and the Trustee shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each Servicing Advance made thereby (out of its own funds) for so long as such Servicing Advance is outstanding, and such interest will be paid: first, out of any Default Charges collected on or in respect of the related Mortgage Loan or REO Loan; and second, at any time coinciding with or following the reimbursement of such Servicing Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Collection Account. As and to the extent provided in Sections 3.03(a) and 3.05(a), the Master Servicer shall reimburse itself, the Special Servicer or the Trustee, as appropriate, for any Servicing Advance made thereby as soon as practicable after funds available for such purpose are deposited in the Collection Account or a Servicing Account. (g) Notwithstanding anything to the contrary set forth herein, none of the Master Servicer, the Special Servicer or the Trustee shall be required to make any Servicing Advance (including, without limitation, an Emergency Advance) that it determines in its reasonable, good faith judgment would constitute a Nonrecoverable Servicing Advance. In addition, Nonrecoverable Servicing Advances shall be reimbursable pursuant to Section 3.05(a)(vii) out of general collections on the Mortgage Pool on deposit in the Collection Account. The determination by the Master Servicer, the Special Servicer or, if applicable, the Trustee, that it has made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced by an Officer's Certificate delivered promptly to the Trustee (or, if applicable, retained thereby), the Sponsor and the Rating Agencies, setting forth the basis for such determination, together with (if such determination is prior to the liquidation of the related Mortgage Loan or REO Property) a copy of an Appraisal of the related Mortgaged ProSpecially

Appears in 1 contract

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

Servicing Compensation; Interest on Servicing Advances; Payment of Certain Expenses. Obligations of the Trustee Regarding Back-up Servicing Advances. (a) As compensation for its activities hereunder, the Master Servicer shall be entitled to receive the Master Servicing Fee with respect to each ~~Mortgage~~ Loan (~~including, without limitation,~~ including each Specially Serviced ~~Mortgage~~ Loan) and each related REO Loan. As to each ~~Mortgage~~ such Loan and REO Loan, for each calendar month (commencing with January 2008) or any applicable portion thereof, the Master Servicing Fee shall accrue ~~from time to time~~ at the ~~applicable~~ related Master Servicing Fee Rate on the ~~basis of the~~ same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be changed or modified at any time following the Closing Date) and applicable lawamount, and without giving effect to any Excess Interest that may accrue on any ~~Hyper-Amortization~~ ARD Loan after its Anticipated Repayment Date, as interest accrues from time to time during such calendar month (or portion thereof) on such Loan or is deemed to accrue from time to time during such calendar month (or portion thereof) on such REO Loan, as the case may be, and shall be calculated on the same Interest Accrual Basis as is applicable for such Loan or REO Loan, as the case may be. The Master Servicing Fee with respect to any ~~Mortgage~~ Loan or REO Loan shall cease to accrue if a Liquidation Event (or with respect to a Non-Serviced Loan, a similar event occurs under the related Non-Serviced Loan Servicing Agreement) occurs in respect thereof. ~~Earned but unpaid~~ Master Servicing Fees earned with respect to any such Loan or REO Loan shall be payable ~~monthly, on a loan-by-loan basis,~~ monthly from payments of interest on ~~each Mortgage~~ such Loan ~~and~~ or REO Revenues allocable as interest on ~~each~~ such REO Loan, as the case may be. The Master Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of any ~~Mortgage~~ Loan or REO Loan out of the portion of any related Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds to allocable as interest on such Loan or REO Loan, as the ~~extent permitted by Section 3.05(a)~~case may be. The right to receive the Master Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the Master Servicer's responsibilities and obligations under this Agreement or and except as otherwise expressly provided in ~~Section 3.22(d). The Master Servicer shall, monthly out of its Master Servicing Fee, pay to any Sub-Servicer retained by~~ the Master Servicer such Sub-Servicer's sub-servicing fee (including, without limitation, any Primary Servicing Fee, if applicable), to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreementfollowing paragraph. (b) The Master Servicer shall be entitled to receive the following items as additional servicing compensation:, which shall be paid prior to remittance of such amounts, if any, which are required to be paid in the case of a Serviced Whole Loan to any Companion Loan Holder under any Intercreditor Agreement (the following items, collectively, "Additional Master Servicing Compensation"): (i) any and all Net Default Charges, ~~assumption fees~~Net Assumption Application Fees, ~~modification~~ Net Modification Application Fees and earnout fees collected with respect to a Performing Serviced Loan; (ii) 50% of any and ~~any similar fees (excluding Prepayment Premiums), in each case to the extent~~ all Net Assumption Fees actually paid by a Mortgagor with respect to a ~~Mortgage Loan that is not a Specially~~ Performing Serviced ~~Mortgage~~ Loan; (iiiii) ~~charges for beneficiary statements or demands~~ 50% of any and ~~amounts collected for checks returned for insufficient funds~~all Net Modification Fees, ~~to the extent~~ extension fees, consent fees and waiver fees actually paid by a Mortgagor with respect to a Performing Serviced Loan for which Special Servicer approval is required; (iv) any ~~Mortgage~~ and all charges for beneficiary statements or demands, amounts collected for checks returned for insufficient funds and other loan processing fees actually paid by a Mortgagor with respect to a Performing Serviced Loan and, in the case of checks returned for insufficient funds, with respect to a Specially Serviced Loan; (~~iii~~v) any and all Prepayment Interest ~~Excesses~~ Excess collected on the Mortgage Loans (~~but only to the extent such Prepayment Interest Excesses collected during any Collection Period are greater~~ other than ~~all Prepayment Interest Shortfalls incurred in respect of the~~ Non-Serviced Mortgage ~~Loans during such Collection Period~~Loans)~~; and~~; (ivvi) interest or other income earned on deposits in the Investment Accounts maintained by the Master Servicer, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to any such Investment Account for each Collection Period and, further, in the case of a Servicing Account or Reserve Account, only to the extent such interest or other income is not required to be paid to any Mortgagor under applicable law or under the related ~~Mortgage Loan documents~~Mortgage); ~~provided that~~ and (vii) 50% of any and all substitution fees (net of any costs incurred in connection with any substitution) collected on a Performing Serviced Loan. Notwithstanding the foregoing with respect to ~~the items~~ any 50% sharing of ~~additional servicing compensation set forth~~ fees referenced in ~~clauses (i) and (ii) above~~this Section 3.11(b), the Master Servicer shall, in turn, pay the amounts described therein to the related Sub-Servicer to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. Notwithstanding anything to the contrary contained herein, any entity acting as Master Servicer shall be entitled to ~~assign~~ all such fees if with respect to ~~an Affiliate~~ the right to receive, for so long as (but only for so long as) such entity continues to act as Master Servicer, any or all of the items constituting additional servicing compensation contemplated by this Section 3.11(b). The Master Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing activity related to any ~~Sub-Servicer retained by it and the premiums for any blanket policy insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent~~ such ~~expenses are not payable directly out of the Collection Account, and~~ fee the Master Servicer ~~shall~~ is not ~~be entitled~~ required to ~~reimbursement therefor except as expressly provided in~~ seek the consent and/or approval of the Special Servicer pursuant to this Agreement. To the extent that any of the amounts described in the preceding paragraph are collected by the Special Servicer, the Special Servicer shall promptly pay such amounts to the Master Servicer. (c) As compensation for its activities hereunder, the Special Servicer shall be entitled to receive monthly the Special Servicing Fee with respect to each Specially Serviced ~~Mortgage~~ Loan and each REO ~~Loan~~Loan for which it is responsible. As to each Specially Serviced ~~Mortgage~~ Loan and REO Loan, for any particular calendar month or applicable portion thereof, the Special Servicing Fee shall accrue ~~from time to time~~ at the Special Servicing Fee Rate on the ~~basis of the~~ same principal amount ~~and for the same number of days respecting which any related~~ as interest ~~payment due~~ accrues from time to time during such calendar month (or portion thereof) on such ~~Mortgage~~ Specially Serviced Loan or is deemed to ~~be due~~ accrue from time to time during such calendar month (or portion thereof) on such REO ~~Loan is computed under~~ Loan, as the ~~terms of the related Mortgage Note (as such terms~~ case may ~~be modified at any time following the Closing Date) and applicable law~~be, and ~~without giving effect to any Excess~~ shall be calculated on the same Interest ~~that~~ Accrual Basis as is applicable for such Specially Serviced Loan or REO Loan, as the case may ~~accrue on any Hyper- Amortization Loan after its Anticipated Repayment Date~~be. The Special Servicing Fee with respect to any Specially Serviced ~~Mortgage~~ Loan or REO Loan shall cease to accrue as of the date a Liquidation Event occurs in respect thereof or or, in the case of a Specially Serviced Loan, as of the date it becomes a Corrected ~~Mortgage~~ Serviced Loan. Earned but unpaid Special Servicing Fees with respect to Specially Serviced Loans and REO Loans shall be payable monthly out of general collections on the ~~Mortgage~~ Loans and any REO Properties on deposit in the ~~Collection~~ Certificate Account pursuant to Section 3.05(a); provided, however, if a Serviced Whole Loan is involved, first out of funds on deposit in the related Serviced Whole Loan Custodial Account pursuant to Section 3.05(f). As further compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Workout Fee with respect to each Corrected ~~Mortgage~~ Serviced Loan, unless the basis on which such Mortgage Loan became a Corrected Mortgage Loan was the remediation of a circumstance or condition relating to the Mortgage Loan Seller's or the Additional Warranting Party's obligation to repurchase such Mortgage Loan pursuant to Section 2.03. As to each Corrected ~~Mortgage~~ Serviced Loan~~, subject to the exceptions provided for in the preceding sentence~~, the Workout Fee shall be payable ~~from~~out of, and shall be calculated by application of the Workout Fee Rate to, each ~~collection~~ payment of interest (other than Default Interest ~~and, in the case of a Hyper-Amortization Loan after its Anticipated Repayment Date,~~ or Excess Interest) and principal received from the related Mortgagor on such ~~Mortgage~~ Serviced Loan for so long as it remains a Corrected ~~Mortgage~~ Serviced Loan. The Workout Fee with respect to any such Corrected ~~Mortgage~~ Serviced Loan will cease to be payable if a new Servicing Transfer Event occurs with respect thereto or if the related Mortgaged Property becomes an a REO Property; provided that a new Workout Fee ~~will~~ would become payable if and when ~~such Mortgage~~ the subject Serviced Loan again ~~becomes~~ became a Corrected ~~Mortgage~~ Serviced Loan. If the Special Servicer is ~~terminated other than for cause~~ terminated, including pursuant to Section 3.23, or resigns in accordance with ~~clause (ii) of the first paragraph of~~ Section 6.04, it shall retain the right to receive any and all Workout Fees payable in respect of ~~Mortgage~~ (i) any Serviced Loans serviced by it that became Corrected ~~Mortgage~~ Serviced Loans during the period that it acted as Special Servicer and that were still ~~such~~ Corrected Serviced Loans at the time of such termination or resignation and (ii) any Specially Serviced Loans for which such Special Servicer has resolved the circumstances and/or conditions causing any such Serviced Loan to be a Specially Serviced Loan, but that had not as of the time the Special Servicer was terminated become a Corrected Serviced Loan solely because the related Mortgagor had not made three consecutive timely Monthly Payments and that subsequently becomes a Corrected Serviced Loan as a result of the related Mortgagor making such three consecutive timely monthly payments (and the successor to the Special Servicer shall not be entitled to any portion of such Workout Fees), in each case until the Workout Fee for any such ~~Mortgage Loan~~ loan ceases to be payable in accordance with the preceding sentence; provided that, in the case of any Specially Serviced Loan described in clause (ii) of this sentence, the terminated Special Servicer shall immediately deliver the related Servicing File to the Master Servicer, and the Master Servicer shall (without further compensation) monitor that all conditions precedent to such Serviced Loan's becoming a Corrected Serviced Loan are satisfied and, further, shall immediately transfer such Servicing File to the new Special Servicer if and when it becomes apparent to the Master Servicer that such conditions precedent will not be satisfied. As further compensation for its activities hereunder, the Special Servicer shall also be entitled to receive a Liquidation Fee with respect to each Specially Serviced ~~Mortgage~~ Loan or REO ~~Property~~ Loan as to which it receives any ~~full~~ full, partial or discounted payoff from the related Mortgagor or any Insurance Proceeds, Condemnation Proceeds or Liquidation ~~Proceeds (other than~~ Proceeds. Notwithstanding the foregoing and for the avoidance of doubt, no Liquidation Fee shall be payable in connection ~~with~~ with: (a) the purchase of ~~any such Specially~~ a Defaulted Serviced ~~Mortgage~~ Loan ~~or REO Property~~ by ~~the Special Servicer pursuant to Section 3.18, by the Master Servicer or~~ the Majority Certificateholder of the Controlling Class pursuant to any applicable purchase right set forth in Section ~~3.18~~ 3.18(c) or with respect to a purchase of a related Defaulted Serviced Loan at its fair value as determined in Section 3.18, unless such purchase is by an assignee of the Majority Certificateholder of the Controlling Class or the Special Servicer, such assignee is not an affiliate of the Majority Certificateholder of the Controlling Class or the Special Servicer, such assignment is for no material consideration and such purchase occurs or purchase right is exercised more than 90 days from the date that the Special Servicer has initially determined the fair value of the related Mortgage Loan; (b) the purchase of any Mortgage Loan by the related A/B Whole Loan Purchase Option Holder (or its designee) or the holder of a subordinate note or a Mezzanine Loan (or its designee) pursuant to a purchase option contained in the related intercreditor agreement unless such purchase occurs or purchase right is exercised more than 90 days from the date that the Special Servicer has initially determined the fair value of the Mortgage Loan; (c) the purchase option of the Majority Certificateholder of the Controlling Class, the Master Servicer or the Special Servicer pursuant to Section 9.01~~, or~~ ; (d) the repurchase by the Mortgage Loan Seller ~~or the Additional Warranting Party~~ of a Mortgage Loan so required to be repurchased by it pursuant to Section 4 of the Mortgage Loan Purchase and Sale Agreement and Section 2.03 within ~~120~~ the time frame set forth in the Initial Resolution Period and/or the Resolution Extension Period (if applicable), provided that such purchase occurs within 90 days after the date that the Mortgage Loan Seller was first notified of its ~~discovery~~ obligation to repurchase such Loan; or ~~notice~~ (~~whichever occurred earlier~~e) ~~of the breach or Document Defect that gave rise to the repurchase obligation, and other than~~ in connection with a Loss of Value Payment by the ~~condemnation or other governmental taking of a Mortgaged Property or REO Property)~~Mortgage Loan Seller. As to each such Specially Serviced ~~Mortgage~~ Loan or REO ~~Property~~Loan, the Liquidation Fee shall be payable ~~from~~out of, and shall be calculated by application of the Liquidation Fee Rate to, any such ~~full~~ full, partial or discounted ~~payoff~~ payoff, Condemnation Proceeds and/or ~~such~~ Liquidation Proceeds received or collected in respect thereof (~~excluding~~ other than any portion of such ~~payoff and/or~~ payment or proceeds that represents ~~accrued but unpaid~~ Default Charges, Excess Interest ~~with respect to~~ or a ~~Hyper-Amortization Loan after its Anticipated Repayment Date or accrued but unpaid Default Interest~~Prepayment Premium)~~; provided that no~~ . The Liquidation Fee ~~will be payable~~ with respect to any such Specially Serviced ~~Mortgage~~ Loan ~~that~~ will not be payable if such Serviced Loan becomes a Corrected Mortgage Loan; and provided, further, that (without limiting the Special Servicer's right to any Workout Fee that is properly payable therefrom), no Liquidation Fee will be payable from, or based upon the receipt of, Liquidation Proceeds collected as a result of any purchase of a Specially Serviced Mortgage Loan or REO Property described in the parenthetical to the first sentence of this paragraph or in connection with a condemnation or other governmental taking of a Mortgaged Property or REO Property. Notwithstanding anything to the contrary herein, a Liquidation Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid from the same proceeds on or with respect to such Mortgage Loan. The Special Servicer's right to receive ~~the~~ any Special Servicing Fee, ~~the~~ Workout Fee and/or ~~the~~ Liquidation Fee to which it is entitled may not be transferred in whole or in part except in connection with the transfer of all of the Special Servicer's responsibilities and obligations under this ~~Agreement~~Agreement and except as otherwise expressly provided herein. (d) The Special Servicer shall be entitled to receive the following items as additional special servicing compensation:, which shall be paid prior to remittance of such amounts, if any, which are required to be paid to the related Companion Loan Holder in the case of a Serviced Whole Loan under the related Intercreditor Agreement (the following items, collectively, the "Additional Special Servicing Compensation"): (i) ~~(A)~~ any and all Net Default Charges collected with respect to ~~the extent allocable to the period when any Mortgage Loan is~~ a Specially Serviced ~~Mortgage~~ Loan or ~~to the extent allocable to an~~ a REO Loan~~, any Net Default Charges actually collected on such Mortgage Loan or REO Loan, as the case may be, and~~ ; (Bii) any ~~assumption~~ and all Net Assumption Fees, Net Assumption Application Fees, Net Modification Fees, Net Modification Application Fees, extension fees, ~~modification fees~~ consent fees, waiver fees, earnout fees, substitution fees, late payment charges and charges for beneficiary statements or ~~similar fees (excluding Prepayment Premiums)~~ demands that are actually ~~collected~~ received on or with respect to a Specially Serviced ~~Mortgage Loans~~ Loan or a REO ~~Loans; and~~Loan; (iiiii) 50% of any and all Net Assumption Fees, modification fees, extension fees, consent fees and waiver fees that are actually received on or with respect to a Performing Serviced Loan; (iv) interest or other income earned on deposits in the Special Servicer's applicable REO ~~Account, if established,~~ Account in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to ~~the~~ such REO Account for each Collection Period); and (v) 50% of any and all substitution fees (net of any costs incurred in connection with any substitution) collected on a Performing Serviced Loan. Notwithstanding the foregoing with respect to the fees referenced in the immediately preceding clauses (iii) and (v), the Special Servicer shall not be entitled to such fees unless the Master Servicer was required to seek the approval or consent of the Special Servicer pursuant to this Agreement with respect to any consent, extension, modification or waiver related to any such fee. To the extent that any of the amounts described in ~~clause (i)(B) of~~ the preceding paragraph are collected by the Master ~~Servicer~~Servicer with respect to a Specially Serviced Loan, the Master Servicer shall promptly pay such amounts to the Special Servicer and shall not be required to deposit such amounts in the ~~Collection~~ Certificate Account ~~pursuant to Section 3.04(a). Additional servicing compensation to which~~ or if a Serviced Whole Loan is involved, in the related Serviced Whole Loan Custodial Account. (e) The Master Servicer ~~(or, if so provided by the applicable Sub-Servicing Agreement, any Sub-Servicer retained thereby) is entitled pursuant to Section 3.11(b) in the form of assumption fees, modification fees~~ and ~~any similar fees (excluding Prepayment Premiums) collected by~~ the Special Servicer on Mortgage Loans that are not Specially Serviced Mortgage Loans or REO Loans, or in the form of charges for beneficiary statements or demands and amounts collected for checks returned for insufficient funds with respect to any Mortgage Loans (including, without limitation, Specially Serviced Mortgage Loans), shall be paid promptly to the Master Servicer by the Special Servicer. Notwithstanding anything to the contrary contained herein, any entity acting as Special Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Special Servicer, any or all of the items constituting additional special servicing compensation contemplated by this Section 3.11(d). The Special Servicer shall each be required (subject to Section 3.11(h)) to pay out of its own funds all ~~overhead, general and administrative~~ expenses incurred by it in connection with its servicing activities hereunder (~~including, without limitation,~~ including payment of any amounts due and owing to any Sub-Servicers retained by it (including any termination fees) and the premiums for any blanket policy or the standby fee or similar premium, if any, for any master force placed policy obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the ~~Collection Account~~ Certificate Account, the related Serviced Whole Loan Custodial Account, the Reserve Accounts or ~~the~~ a REO ~~Account~~ Account, and neither the Master Servicer ~~is not required to advance such expenses at the direction of the Special Servicer, and~~ nor the Special Servicer shall ~~not~~ be entitled to reimbursement for any such expense incurred by it except as expressly provided in this Agreement. If the Master Servicer is required to make any Servicing Advance hereunder at the direction of the Special Servicer in accordance with Section 3.03(c), Section 3.19 or otherwise, the Special Servicer shall promptly provide the Master Servicer with such documentation regarding the subject Servicing Advance as the Master Servicer may reasonably request. (ef) If the Master ~~Servicer or Special~~ Servicer is required under this Agreement to make a Servicing Advance, but ~~neither~~ does not do so within 10 ten days after such ~~Servicing~~ Advance is required to be made, the Trustee shall, if it has actual knowledge of such failure on the part of the Master ~~Servicer or Special~~ Servicer~~, as the case may be~~, give notice of such ~~failure, as applicable,~~ failure to the Master ~~Servicer and/or the Special~~ Servicer~~, as appropriate~~. If such ~~Servicing~~ Advance is not made by the Master Servicer ~~or the Special Servicer~~ within three ~~(3)~~ Business Days after such ~~notice~~ notice, then (subject to Section ~~3.11(g~~3.11(h)) ~~below),~~ the Trustee shall make such ~~Servicing~~ Advance. Any failure by the Master ~~Servicer or the Special~~ Servicer to make a Servicing Advance it is required to make hereunder shall constitute an Event of Default by the Master ~~Servicer or the Special~~ Servicer~~, as the case may be~~, subject to and as provided in Section 7.01(a). (fg) ~~As and to the extent permitted by Section 3.05(a), the~~ The Master Servicer, the Special Servicer ~~(to the extent it has not already been reimbursed for any such Servicing Advance by the Master Servicer)~~ and the Trustee shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each ~~Servicing~~ Advance made thereby (~~out of~~ with its own funds) ), for so long as such Servicing Advance is outstanding, and such interest will be paid: first, out of any Default Charges collected on or in respect of the related Mortgage Loan or REO Loan; and second, at any time coinciding with or following the reimbursement of such Servicing Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Collection Account. As and to the extent provided in Sections 3.03(a) and 3.05(a), the Master Servicer shall reimburse itself, the Special Servicer or the Trustee, as appropriate, for any Servicing Advance made thereby as soon as practicable after funds available for such purpose are deposited in the Collection Account or a Servicing Account. (g) Notwithstanding anything to the contrary set forth herein, none of the Master Servicer, the Special Servicer or the Trustee shall be required to make any Servicing Advance (including, without limitation, an Emergency Advance) that it determines in its reasonable, good faith judgment would constitute a Nonrecoverable Servicing Advance. In addition, Nonrecoverable Servicing Advances shall be reimbursable pursuant to Section 3.05(a)(vii) out of general collections on the Mortgage Pool on deposit in the Collection Account. The determination by the Master Servicer, the Special Servicer or, if applicable, the Trustee, that it has made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced by an Officer's Certificate delivered promptly to the Trustee (or, if applicable, retained thereby), the Sponsor and the Rating Agencies, setting forth the basis for such determination, together with (if such determination is prior to the liquidation of the related Mortgage Loan or REO Property) a copy of an Appraisal of the related Mortgaged Pro

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2007-5)

Servicing Compensation; Interest on Servicing Advances; Payment of Certain Expenses. Obligations of the Trustee Regarding Back-up Servicing Advances. (a) As compensation for its activities hereunder, the Master Servicer shall be entitled to receive the Master Servicing Fee with respect to each ~~Mortgage~~ Loan (~~including, without limitation,~~ including each Specially Serviced ~~Mortgage~~ Loan) and each related REO Loan. As to each ~~Mortgage~~ such Loan and REO Loan, for each calendar month (commencing with December 2006) or any applicable portion thereof, the Master Servicing Fee shall accrue ~~from time to time~~ at the ~~applicable~~ related Master Servicing Fee Rate on the ~~basis of the~~ same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be changed or modified at any time following the Closing Date) and applicable lawamount, and without giving effect to any Excess Interest that may accrue on any ~~Hyper-Amortization~~ ARD Loan after its Anticipated Repayment Date, as interest accrues from time to time during such calendar month (or portion thereof) on such Loan or is deemed to accrue from time to time during such calendar month (or portion thereof) on such REO Loan, as the case may be, and shall be calculated on the same Interest Accrual Basis as is applicable for such Loan or REO Loan, as the case may be. The Master Servicing Fee with respect to any ~~Mortgage~~ Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in respect thereof. ~~Earned but unpaid~~ Master Servicing Fees earned with respect to any such Loan or REO Loan shall be payable ~~monthly, on a loan-by-loan basis,~~ monthly from payments of interest on ~~each Mortgage~~ such Loan ~~and~~ or REO Revenues allocable as interest on ~~each~~ such REO Loan, as the case may be. The Master Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of any ~~Mortgage~~ Loan or REO Loan out of the portion of any related Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds to allocable as interest on such Loan or REO Loan, as the ~~extent permitted by Section 3.05(a)~~case may be. The right to receive the Master Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the Master Servicer's responsibilities and obligations under this Agreement or and except as otherwise expressly provided in ~~Section 3.22(d). The Master Servicer shall, monthly out of its Master Servicing Fee, pay to any Sub-Servicer retained by~~ the Master Servicer such Sub-Servicer's sub-servicing fee (including, without limitation, any Primary Servicing Fee, if applicable), to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreementfollowing paragraph. (b) The Master Servicer shall be entitled to receive the following items as additional servicing compensation:, which shall be paid prior to remittance of such amounts, if any, which are required to be paid to the related Companion Loan Holder (in the case of a Whole Loan under the related Intercreditor Agreement) (the following items, collectively, "Additional Master Servicing Compensation"): (i) any and all Net Default Charges, ~~assumption fees~~Net Assumption Application Fees, ~~modification~~ Net Modification Application Fees and earnout fees collected with respect to a Performing Loan; (ii) 50% of any and ~~any similar fees (excluding Prepayment Premiums), in each case to the extent~~ all Net Assumption Fees actually paid by a Mortgagor with respect to a ~~Mortgage Loan that is not a Specially Serviced Mortgage~~ Performing Loan; (iiiii) ~~charges for beneficiary statements or demands~~ 50% of any and ~~amounts collected for checks returned for insufficient funds~~all Net Modification Fees, ~~to the extent~~ extension fees, consent fees and waiver fees actually paid by a Mortgagor with respect to a Performing Loan for which Special Servicer approval is required; (iv) any ~~Mortgage~~ and all charges for beneficiary statements or demands, amounts collected for checks returned for insufficient funds and other loan processing fees actually paid by a Mortgagor with respect to a Performing Loan and, in the case of checks returned for insufficient funds, with respect to a Specially Serviced Loan; (~~iii~~v) any and all Prepayment Interest ~~Excesses~~ Excess collected on the Mortgage Loans (but only to the extent such Prepayment Interest Excesses collected during any Collection Period are greater than all Prepayment Interest Shortfalls incurred in respect of the Mortgage Loans during such Collection Period); andLoans; (ivvi) interest or other income earned on deposits in the Investment Accounts maintained by the Master Servicer, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to any such Investment Account for each Collection Period and, further, in the case of a Servicing Account or Reserve Account, only to the extent such interest or other income is not required to be paid to any Mortgagor under applicable law or under the related ~~Mortgage Loan documents~~Mortgage); ~~provided that~~ and (vii) 50% of any and all substitution fees (net of any costs incurred in connection with any substitution) collected on a Performing Loan. Notwithstanding the foregoing with respect to ~~the items~~ any 50% sharing of ~~additional servicing compensation set forth~~ fees referenced in ~~clauses (i) and (ii) above~~this Section 3.11(b), the Master Servicer shall, in turn, pay the amounts described therein to the related Sub-Servicer to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. Notwithstanding anything to the contrary contained herein, any entity acting as Master Servicer shall be entitled to ~~assign~~ all such fees if with respect to ~~an Affiliate~~ the right to receive, for so long as (but only for so long as) such entity continues to act as Master Servicer, any or all of the items constituting additional servicing compensation contemplated by this Section 3.11(b). The Master Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing activity related to any ~~Sub-Servicer retained by it and the premiums for any blanket policy insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent~~ such ~~expenses are not payable directly out of the Collection Account, and~~ fee the Master Servicer ~~shall~~ is not ~~be entitled~~ required to ~~reimbursement therefor except as expressly provided in~~ seek the consent and/or approval of the Special Servicer pursuant to this Agreement. To the extent that any of the amounts described in the preceding paragraph are collected by the Special Servicer, the Special Servicer shall promptly pay such amounts to the Master Servicer. (c) As compensation for its activities hereunder, the Special Servicer shall be entitled to receive monthly the Special Servicing Fee with respect to each Specially Serviced ~~Mortgage~~ Loan and each REO ~~Loan~~Loan for which it is responsible. As to each Specially Serviced ~~Mortgage~~ Loan and REO Loan, for any particular calendar month or applicable portion thereof, the Special Servicing Fee shall accrue ~~from time to time~~ at the Special Servicing Fee Rate on the ~~basis of the~~ same principal amount ~~and for the same number of days respecting which any related~~ as interest ~~payment due~~ accrues from time to time during such calendar month (or portion thereof) on such ~~Mortgage~~ Specially Serviced Loan or is deemed to ~~be due~~ accrue from time to time during such calendar month (or portion thereof) on such REO ~~Loan is computed under~~ Loan, as the ~~terms of the related Mortgage Note (as such terms~~ case may ~~be modified at any time following the Closing Date) and applicable law~~be, and ~~without giving effect to any Excess~~ shall be calculated on the same Interest ~~that~~ Accrual Basis as is applicable for such Specially Serviced Loan or REO Loan, as the case may ~~accrue on any Hyper- Amortization Loan after its Anticipated Repayment Date~~be. The Special Servicing Fee with respect to any Specially Serviced ~~Mortgage~~ Loan or REO Loan shall cease to accrue as of the date a Liquidation Event occurs in respect thereof or or, in the case of a Specially Serviced Loan, as of the date it becomes a Corrected ~~Mortgage~~ Loan. Earned but unpaid Special Servicing Fees with respect to Specially Serviced Loans and REO Loans shall be payable monthly out of general collections on the ~~Mortgage~~ Loans and any REO Properties on deposit in the ~~Collection~~ Certificate Account pursuant to Section 3.05(a); provided, however, if a Whole Loan is involved, first out of funds on deposit in the related Whole Loan Custodial Account pursuant to Section 3.05(f). As further compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Workout Fee with respect to each Corrected ~~Mortgage~~ Loan, unless the basis on which such Mortgage Loan became a Corrected Mortgage Loan was the remediation of a circumstance or condition relating to the Mortgage Loan Seller's or the Additional Warranting Party's obligation to repurchase such Mortgage Loan pursuant to Section 2.03. As to each Corrected ~~Mortgage~~ Loan~~, subject to the exceptions provided for in the preceding sentence~~, the Workout Fee shall be payable ~~from~~out of, and shall be calculated by application of the Workout Fee Rate to, each ~~collection~~ payment of interest (other than Default Interest ~~and, in the case of a Hyper-Amortization Loan after its Anticipated Repayment Date,~~ and Excess Interest) and principal received from the related Mortgagor on such ~~Mortgage~~ Loan for so long as it remains a Corrected ~~Mortgage~~ Loan. The Workout Fee with respect to any such Corrected ~~Mortgage~~ Loan will cease to be payable if a new Servicing Transfer Event occurs with respect thereto or if the related Mortgaged Property becomes an REO Property; provided that a new Workout Fee ~~will~~ would become payable if and when ~~such Mortgage~~ the subject Loan again ~~becomes~~ became a Corrected ~~Mortgage~~ Loan. If the Special Servicer is ~~terminated other than for cause~~ terminated, including pursuant to Section 3.23, or resigns in accordance with ~~clause (ii) of the first paragraph of~~ Section 6.04, it shall retain the right to receive any and all Workout Fees payable in respect of ~~Mortgage~~ (i) any Loans serviced by it that became Corrected ~~Mortgage~~ Loans during the period that it acted as Special Servicer and that were still ~~such~~ Corrected Loans at the time of such termination or resignation and (ii) any Specially Serviced Loans for which such Special Servicer has resolved the circumstances and/or conditions causing any such Loan to be a Specially Serviced Loan, but that had not as of the time the Special Servicer was terminated become a Corrected Loan solely because the related Mortgagor had not made three consecutive timely Monthly Payments and that subsequently becomes a Corrected Loan as a result of the related Mortgagor making such three consecutive timely monthly payments (and the successor to the Special Servicer shall not be entitled to any portion of such Workout Fees), in each case until the Workout Fee for any such ~~Mortgage Loan~~ loan ceases to be payable in accordance with the preceding sentence; provided that, in the case of any Specially Serviced Loan described in clause (ii) of this sentence, the terminated Special Servicer shall immediately deliver the related Servicing File to the Master Servicer, and the Master Servicer shall (without further compensation) monitor that all conditions precedent to such Loan's becoming a Corrected Loan are satisfied and, further, shall immediately transfer such Servicing File to the new Special Servicer if and when it becomes apparent to the Master Servicer that such conditions precedent will not be satisfied. As further compensation for its activities hereunder, the Special Servicer shall also be entitled to receive a Liquidation Fee with respect to each Specially Serviced ~~Mortgage~~ Loan or REO ~~Property~~ Loan as to which it receives any ~~full~~ full, partial or discounted payoff from the related Mortgagor or any Insurance Proceeds, Condemnation Proceeds or Liquidation ~~Proceeds (other than~~ Proceeds. Notwithstanding the foregoing and for the avoidance of doubt, no Liquidation Fee shall be payable in connection with (a) the purchase of ~~any such Specially Serviced Mortgage~~ a Defaulted Loan ~~or REO Property~~ by ~~the Special Servicer pursuant to Section 3.18, by the Master Servicer or~~ the Majority Certificateholder of the Controlling Class pursuant to any applicable purchase right set forth in Section ~~3.18~~ 3.18(c) or (l) or with respect to a purchase of a related Defaulted Loan at its fair value as determined in Section 3.18, unless such purchase is by an assignee of the Majority Certificateholder of the Controlling Class or the Special Servicer, such assignee is not an affiliate of the Majority Certificateholder of the Controlling Class or the Special Servicer, such assignment is for no material consideration and such purchase occurs or purchase right is exercised more than 90 days from the date that the Special Servicer has initially determined the fair value of the Mortgage Loan, (b) the purchase of any Mortgage Loan by the holder of a subordinate note or a Mezzanine Loan pursuant to a purchase option contained in the related intercreditor agreement unless such purchase occurs or purchase right is exercised more than 90 days from the date that the Special Servicer has initially determined the fair value of the Mortgage Loan, (c) the purchase option of the Majority Certificateholder of the Controlling Class, the Master Servicer or the Special Servicer pursuant to Section 9.01, or (d) the repurchase by the related Mortgage Loan Seller ~~or the Additional Warranting Party~~ of a Mortgage Loan so required to be repurchased by it pursuant to Section 4 of the related Mortgage Loan Purchase and Sale Agreement and Section 2.03 within ~~120~~ the time frame set forth in the Initial Resolution Period and/or the Resolution Extension Period (if applicable); provided that such purchase occurs within 90 days after the date that such Mortgage Loan Seller was first notified of its ~~discovery or notice (whichever occurred earlier) of the breach or Document Defect that gave rise~~ obligation to ~~the~~ repurchase ~~obligation, and other than in connection with the condemnation or other governmental taking of a Mortgaged Property or REO Property)~~such Loan. As to each such Specially Serviced ~~Mortgage~~ Loan or REO ~~Property~~Loan, the Liquidation Fee shall be payable ~~from~~out of, and shall be calculated by application of the Liquidation Fee Rate to, any such ~~full~~ full, partial or discounted ~~payoff~~ payoff, Condemnation Proceeds and/or ~~such~~ Liquidation Proceeds received or collected in respect thereof (~~excluding~~ other than any portion of such ~~payoff and/or~~ payment or proceeds that represents ~~accrued but unpaid~~ Default Charges, Excess Interest ~~with respect to~~ or a ~~Hyper-Amortization Loan after its Anticipated Repayment Date or accrued but unpaid Default Interest~~Prepayment Premium)~~; provided that no~~ . The Liquidation Fee ~~will be payable~~ with respect to any such Specially Serviced ~~Mortgage~~ Loan ~~that~~ will not be payable if such Loan becomes a Corrected Mortgage Loan; and provided, further, that (without limiting the Special Servicer's right to any Workout Fee that is properly payable therefrom), no Liquidation Fee will be payable from, or based upon the receipt of, Liquidation Proceeds collected as a result of any purchase of a Specially Serviced Mortgage Loan or REO Property described in the parenthetical to the first sentence of this paragraph or in connection with a condemnation or other governmental taking of a Mortgaged Property or REO Property. Notwithstanding anything to the contrary herein, a Liquidation Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid from the same proceeds on or with respect to such Mortgage Loan. The Special Servicer's right to receive ~~the~~ any Special Servicing Fee, ~~the~~ Workout Fee and/or ~~the~~ Liquidation Fee to which it is entitled may not be transferred in whole or in part except in connection with the transfer of all of the Special Servicer's responsibilities and obligations under this ~~Agreement~~Agreement and except as otherwise expressly provided herein. (d) The Special Servicer shall be entitled to receive the following items as additional special servicing compensation:, which shall be paid prior to remittance of such amounts, if any, which are required to be paid to the related Companion Loan Holder (in the case of a Whole Loan under the related Intercreditor Agreement) (the following items, collectively, the "Additional Special Servicing Compensation"): (i) ~~(A)~~ any and all Net Default Charges collected with respect to ~~the extent allocable to the period when any Mortgage Loan is~~ a Specially Serviced ~~Mortgage~~ Loan or ~~to the extent allocable to~~ an REO Loan~~, any Net Default Charges actually collected on such Mortgage Loan or REO Loan, as the case may be, and~~ ; (Bii) any ~~assumption~~ and all Net Assumption Fees, Net Assumption Application Fees, Net Modification Fees, Net Modification Application Fees, extension fees, ~~modification fees~~ consent fees, waiver fees, earnout fees, substitution fees, late payment charges and charges for beneficiary statements or ~~similar fees (excluding Prepayment Premiums)~~ demands that are actually ~~collected~~ received on or with respect to a Specially Serviced ~~Mortgage Loans~~ Loan or an REO ~~Loans; and~~Loan; (iiiii) 50% of any and all Net Assumption Fees, modification fees, extension fees, consent fees and waiver fees that are actually received on or with respect to a Performing Loan; (iv) interest or other income earned on deposits in the Special Servicer's applicable REO ~~Account, if established,~~ Account in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to ~~the~~ such REO Account for each Collection Period); and (v) 50% of any and all substitution fees (net of any costs incurred in connection with any substitution) collected on a Performing Loan. Notwithstanding the foregoing with respect to the fees referenced in the immediately preceding clauses (iii) and (v), the Special Servicer shall not be entitled to such fees unless the Master Servicer was required to seek the approval or consent of the Special Servicer pursuant to this Agreement with respect to any consent, extension, modification or waiver related to any such fee. To the extent that any of the amounts described in ~~clause (i)(B) of~~ the preceding paragraph are collected by the Master ~~Servicer~~Servicer with respect to a Specially Serviced Loan, the Master Servicer shall promptly pay such amounts to the Special Servicer and shall not be required to deposit such amounts in the ~~Collection~~ Certificate Account ~~pursuant to Section 3.04(a). Additional servicing compensation to which~~ or if a Whole Loan is involved, in the related Whole Loan Custodial Account. (e) The Master Servicer ~~(or, if so provided by the applicable Sub-Servicing Agreement, any Sub-Servicer retained thereby) is entitled pursuant to Section 3.11(b) in the form of assumption fees, modification fees~~ and ~~any similar fees (excluding Prepayment Premiums) collected by~~ the Special Servicer on Mortgage Loans that are not Specially Serviced Mortgage Loans or REO Loans, or in the form of charges for beneficiary statements or demands and amounts collected for checks returned for insufficient funds with respect to any Mortgage Loans (including, without limitation, Specially Serviced Mortgage Loans), shall be paid promptly to the Master Servicer by the Special Servicer. Notwithstanding anything to the contrary contained herein, any entity acting as Special Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Special Servicer, any or all of the items constituting additional special servicing compensation contemplated by this Section 3.11(d). The Special Servicer shall each be required (subject to Section 3.11(h)) to pay out of its own funds all ~~overhead, general and administrative~~ expenses incurred by it in connection with its servicing activities hereunder (~~including, without limitation,~~ including payment of any amounts due and owing to any Sub-Servicers retained by it (including any termination fees) and the premiums for any blanket policy or the standby fee or similar premium, if any, for any master force placed policy obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the ~~Collection Account~~ Certificate Account, the related Whole Loan Custodial Account, the Reserve Accounts or ~~the~~ an REO ~~Account~~ Account, and neither the Master Servicer ~~is not required to advance such expenses at the direction of the Special Servicer, and~~ nor the Special Servicer shall ~~not~~ be entitled to reimbursement for any such expense incurred by it except as expressly provided in this Agreement. If the Master Servicer is required to make any Servicing Advance hereunder at the direction of the Special Servicer in accordance with Section 3.03(c), Section 3.19 or otherwise, the Special Servicer shall promptly provide the Master Servicer with such documentation regarding the subject Servicing Advance as the Master Servicer may reasonably request. (ef) If the Master ~~Servicer or Special~~ Servicer is required under this Agreement to make a Servicing Advance, but ~~neither~~ does not do so within 10 ten days after such ~~Servicing~~ Advance is required to be made, the Trustee shall, if it has actual knowledge of such failure on the part of the Master ~~Servicer or Special~~ Servicer~~, as the case may be~~, give notice of such ~~failure, as applicable,~~ failure to the Master ~~Servicer and/or the Special~~ Servicer~~, as appropriate~~. If such ~~Servicing~~ Advance is not made by the Master Servicer ~~or the Special Servicer~~ within three ~~(3)~~ Business Days after such ~~notice~~ notice, then (subject to Section ~~3.11(g~~3.11(h)) ~~below),~~ the Trustee shall make such ~~Servicing~~ Advance. Any failure by the Master ~~Servicer or the Special~~ Servicer to make a Servicing Advance it is required to make hereunder shall constitute an Event of Default by the Master ~~Servicer or the Special~~ Servicer~~, as the case may be~~, subject to and as provided in Section 7.01(a). (fg) ~~As and to the extent permitted by Section 3.05(a), the~~ The Master Servicer, the Special Servicer ~~(to the extent it has not already been reimbursed for any such Servicing Advance by the Master Servicer)~~ and the Trustee shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each ~~Servicing~~ Advance made thereby (~~out of~~ with its own funds) ), for so long as such ~~Servicing~~ Advance is outstanding. Such interest with respect to any Advances shall be payable: (i) first, in accordance with Sections 3.05 and ~~such interest will be paid: first~~3.27, out of any Default Charges subsequently collected on or in respect of the Mortgage Pool or the Companion Loan related ~~Mortgage Loan or REO~~ to a Whole Loan, if applicable; and ~~second~~(ii) then, ~~at any time coinciding with or following~~ after such Advance is reimbursed, but only if and to the ~~reimbursement of~~ extent that such ~~Servicing Advance~~Default Charges are insufficient to cover such Advance Interest, out of general collections on the Mortgage Loans and ~~any~~ REO Properties on deposit in the Collection Account. As and to the extent provided in Sections 3.03(a) and 3.05(a), the Master Servicer shall reimburse itself, the Special Servicer or the Trustee, as appropriate, for any Servicing Advance made thereby as soon as practicable after funds available for such purpose are deposited in the Collection Certificate Account or if a Servicing Account. (g) Notwithstanding anything to the contrary set forth herein, none of the Master Servicer, the Special Servicer or the Trustee shall be required to make any Servicing Advance (including, without limitation, an Emergency Advance) that it determines in its reasonable, good faith judgment would constitute a Nonrecoverable Servicing Advance. In addition, Nonrecoverable Servicing Advances shall be reimbursable pursuant to Section 3.05(a)(vii) out of general collections on the Mortgage Pool on deposit in the Collection Account. The determination by the Master Servicer, the Special Servicer or, if applicable, the Trustee, that it has made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced by an Officer's Certificate delivered promptly to the Trustee (or, if applicable, retained thereby), the Sponsor and the Rating Agencies, setting forth the basis for such determination, together with (if such determination is prior to the liquidation of the related Mortgage Whole Loan or ~~REO Property) a copy of an Appraisal of the~~ related ~~Mortgaged Pro~~

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2006-6)

Servicing Compensation; Interest on Servicing Advances; Payment of Certain Expenses. Obligations of the Trustee Regarding Back-up Servicing Advances. (a) As compensation for its activities hereunder, the Master Servicer shall be entitled to receive the Master Servicing Fee with respect to each and every Mortgage Loan (including, without limitation, each and every Specially Serviced Mortgage Loan) and REO Loan. As to each Mortgage Loan and REO Loan, the Master Servicing Fee shall accrue from time to time at the applicable Master Servicing Fee Rate on the basis of the same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be changed or modified at any time following the Closing Date) and applicable law~~, and without giving effect to any Excess Interest that may accrue on any Hyper-Amortization Loan after its Anticipated Repayment Date~~. The Master Servicing Fee with respect to any Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in respect thereof. ~~Earned but unpaid~~ Master Servicing Fees earned with respect to any Mortgage Loan or REO Loan shall be payable ~~monthly, on a loan-by-loan basis,~~ monthly from payments of interest on ~~each~~ such Mortgage Loan and REO Revenues allocable as interest on ~~each~~ such REO Loan, as the case may be. The Master Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of any Mortgage Loan or REO Loan out of the portion of any related Insurance Proceeds or Liquidation Proceeds to allocable as interest on such Mortgage Loan or REO Loan, as the ~~extent permitted by Section 3.05(a)~~case may be. The right to receive the Master Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the Master Servicer's responsibilities and obligations under this Agreement or except as provided in Section 3.22(d). The Master Servicer shall, monthly out of its Master Servicing Fee, pay to any Sub-Servicer retained by the Master Servicer such Sub-Servicer's sub-servicing fee (including, without limitation, any Primary Servicing Fee, if applicable), to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. (b) The Master Servicer shall be entitled to receive as additional servicing compensation: (i) all Net Default Charges, assumption fees, modification fees and any similar fees (excluding Prepayment Premiums), if any, actually collected in ~~each case~~ respect of any Mortgage Loan and allocable to the ~~extent actually paid by a Mortgagor with respect to a Mortgage Loan~~ period that is it was not a Specially Serviced Mortgage Loan; (ii) charges for beneficiary statements or demands and amounts collected for checks returned for insufficient funds, or similar fees, to the extent actually paid by a ~~Mortgagor~~ Borrower with respect to any Mortgage Loan; (iii) ~~any~~ all Prepayment Interest ~~Excesses~~ Excesses, if any, collected on the Mortgage Loans (but only to the extent such Prepayment Interest Excesses collected during any Collection Period are greater than all Prepayment Interest Shortfalls incurred in respect of the Mortgage Loans during such Collection Period); and (iv) interest or other income earned on deposits in the Investment Accounts maintained by the Master Servicer, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to any such Investment Account for each Collection Period and, in the case of a Servicing Account or Reserve Account, only to the extent such interest or other income is not required to be paid to any ~~Mortgagor~~ Borrower under applicable law or under the related Mortgage Loan documents); provided that with respect to the items of additional servicing compensation set forth in clauses (i) and (ii) above, the Master Servicer shall, in turn, pay the amounts described therein to the related Sub-Servicer to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. Notwithstanding anything to the contrary contained herein, any entity acting as Master Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Master Servicer, any or all of the items constituting additional servicing compensation contemplated by this Section 3.11(b). The Master Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any Sub-Servicer retained by it and the premiums for any blanket policy insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the Collection Account, and the Master Servicer shall not be entitled to reimbursement therefor except as expressly provided in this Agreement. (c) As compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Special Servicing Fee with respect to each Specially Serviced Mortgage Loan and each REO Loan. As to each Specially Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from time to time at the Special Servicing Fee Rate on the basis of the same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due (using for such purpose the principal deemed outstanding and the interest deemed due pursuant to the definition of Assumed P&I Payment) on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be modified at any time following the Closing Date) and applicable law~~, and without giving effect to any Excess Interest that may accrue on any Hyper- Amortization Loan after its Anticipated Repayment Date~~. The Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO Loan shall cease to accrue as of the date a Liquidation Event occurs in respect thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid Special Servicing Fees shall be payable monthly out of general collections on the Mortgage Loans and any REO Properties on deposit in the Collection Account pursuant to Section 3.05(a). As further compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Workout Fee with respect to each Corrected Mortgage Loan, unless the basis on which such Mortgage Loan became a Corrected Mortgage Loan was the remediation of a circumstance or condition relating to the related Mortgage Loan Seller~~'s or the Additional Warranting Party~~'s obligation to repurchase such Mortgage Loan pursuant to Section 2.03, in which case, if such Mortgage Loan is repurchased within the applicable cure period following the related Mortgage Loan Seller's notice or discovery (whichever occurred earlier) of the Document Defect or breach giving rise to such repurchase obligation, no Workout Fee will be payable from or based upon the receipt of, any Purchase Price paid by the related Mortgage Loan Seller in satisfaction of such repurchase obligation. Furthermore, no Workout Fees will be payable from, or based upon, the receipt of any Liquidation Proceeds paid by any Majority Certificateholder of the Controlling Class, the Master Servicer or the Sole Certificateholder in connection with the purchase of, or the exchange of all the Certificates for, all the Mortgage Loans and any REO Properties in the Trust Fund pursuant to Section 9.01 hereof. As to each Corrected Mortgage Loan, subject to the exceptions provided for in the preceding ~~sentence~~two sentences, the Workout Fee shall be payable from, and shall be calculated by application of the Workout Fee Rate to, each collection of interest (other than Default Interest and, in the case of ~~a Hyper-Amortization~~ an ARD Loan after its Anticipated Repayment Date, ~~Excess~~ Additional Interest) and principal (including scheduled payments, prepayments and Balloon Payments at maturity) received on such Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with respect to any Corrected Mortgage Loan will cease to be payable if a Servicing Transfer Event occurs with respect thereto or if the related Mortgaged Property becomes an REO Property; provided that a new Workout Fee will become payable if and when such Mortgage Loan again becomes a Corrected Mortgage Loan. If the Special Servicer is terminated other than for cause or resigns in accordance with clause (ii) of the first paragraph of Section 6.04, it shall retain the right to receive any and all Workout Fees payable in respect of Mortgage Loans that became Corrected Mortgage Loans during the period that it acted as Special Servicer and were still such at the time of such termination or resignation (and the successor Special Servicer shall not be entitled to any portion of such Workout Fees), in each case until the Workout Fee for any such Mortgage Loan ceases to be payable in accordance with the preceding sentence. As further compensation for its activities hereunder, the Special Servicer shall also be entitled to receive a Liquidation Fee with respect to each Specially Serviced Mortgage Loan or REO Property as to which it receives any full or discounted payoff from the related ~~Mortgagor~~ Borrower or any Liquidation Proceeds (other than in connection with the purchase of any such Specially Serviced Mortgage Loan or REO Property by the Special Servicer pursuant to Section 3.18, by the Master Servicer or the Majority Certificateholder of the Controlling Class pursuant to Section 3.18 or Section 9.01, or by ~~the Mortgage Loan Seller~~ Llama or ~~the Additional Warranting Party~~ SBRC pursuant to Section 2.03 within ~~120 days~~ the applicable cure period of its discovery or notice (whichever occurred earlier) of the breach or Document Defect that gave rise to the repurchase obligation, ; other than in connection with the acquisition of any such Specially Serviced Mortgage Loan or REO Property by the Sole Certificateholder in exchange for Certificates pursuant to Section 9.01; and other than in connection with the condemnation or other governmental taking of a Mortgaged Property or REO Property). As to each such Specially Serviced Mortgage Loan or REO Property, the Liquidation Fee shall be payable from, and shall be calculated by application of the Liquidation Fee Rate to, such full or discounted payoff and/or such Liquidation Proceeds (excluding any portion of such payoff and/or proceeds that represents accrued but unpaid ~~Excess~~ Additional Interest with respect to ~~a Hyper-Amortization~~ an ARD Loan after its Anticipated Repayment Date or accrued but unpaid Default Interest); provided that no Liquidation Fee will be payable with respect to any such Specially Serviced Mortgage Loan that becomes a Corrected Mortgage Loan; and provided, further, that (without limiting the Special Servicer's right to any Workout Fee that is properly payable therefrom), no Liquidation Fee will be payable from, or based upon the receipt of, Liquidation Proceeds collected as a result of any purchase or other acquisition of a Specially Serviced Mortgage Loan or REO Property described in the parenthetical to the first sentence of this paragraph or in connection with a condemnation or other governmental taking of a Mortgaged Property or REO Property. Notwithstanding anything to the contrary herein, a Liquidation Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid from the same proceeds on or with respect to such Mortgage Loan. The Special Servicer's right to receive the Special Servicing Fee, the Workout Fee and/or the Liquidation Fee may not be transferred in whole or in part except in connection with the transfer of all of the Special Servicer's responsibilities and obligations under this Agreement. (d) The Special Servicer shall be entitled to receive as additional special servicing compensation: ~~(i)~~ (A) to the extent allocable to the period when any Mortgage Loan is a Specially Serviced Mortgage Loan or to the extent allocable to an REO Loan, any Net Default Charges actually collected on such Mortgage Loan or REO Loan, as the case may be, and (B) any assumption fees, modification fees or similar fees (excluding Prepayment Premiums) actually collected on or with respect to Specially Serviced Mortgage Loans or REO Loans; and (ii) interest or other income earned on deposits in the REO Account, if established, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to the REO Account for each Collection Period). To the extent the amounts described in clause (i)(B) of the preceding paragraph are collected by the Master Servicer, the Master Servicer shall promptly pay such amounts to the Special Servicer and shall not be required to deposit such amounts in the Collection Account pursuant to Section 3.04(a). Additional servicing compensation to which the Master Servicer (or, if so provided by the applicable Sub-Servicing Agreement, any Sub-Servicer retained thereby) is entitled pursuant to Section 3.11(b) in the form of assumption fees, modification fees and any similar fees (excluding Prepayment Premiums) collected by the Special Servicer on Mortgage Loans that are not Specially Serviced Mortgage Loans or REO Loans, or in the form of charges for beneficiary statements or demands and amounts collected for checks returned for insufficient funds with respect to any Mortgage Loans (including, without limitation, Specially Serviced Mortgage Loans), shall be paid promptly to the Master Servicer by the Special Servicer. Notwithstanding anything to the contrary contained herein, any entity acting as Special Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Special Servicer, any or all of the items constituting additional special servicing compensation contemplated by this Section 3.11(d). The Special Servicer shall be required to pay out of its own funds all overhead, general and administrative expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any Sub-Servicers retained by it and the premiums for any blanket policy obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the Collection Account or the REO ~~Account~~ Account, do not constitute Servicing Advances and the Master Servicer is not required to advance such expenses at the direction of the Special Servicer, and the Special Servicer shall not be entitled to reimbursement except as expressly provided in this Agreement. (e) If the Master Servicer or Special Servicer is required under this Agreement to make a Servicing Advance, but neither does so within 10 ten (10) days after such Servicing Advance is required to be made, then the ~~Trustee shall~~Trustee, if it has actual knowledge of such failure on the part of the Master Servicer or Special Servicer, as the case may be, shall give notice of such ~~failure, as applicable,~~ failure to the Master Servicer and/or the Special Servicer, as appropriate. If such Servicing Advance is not made by the Master Servicer or the Special Servicer within three (3) Business Days after such notice then (subject to Section 3.11(g) below), the Trustee shall make such Servicing Advance. Any failure by the Master Servicer or the Special Servicer to make a Servicing Advance it is required to make hereunder shall constitute an Event of Default by the Master Servicer or the Special Servicer, as the case may be, subject to and as provided in Section 7.01(a). (f) As and to the extent permitted by Section 3.05(a), the Master Servicer, the Special Servicer (to the extent it has not already been reimbursed for any such Servicing Advance by the Master Servicer) and the Trustee shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each Servicing Advance made thereby (out of its own funds) for so long as such Servicing Advance is outstanding, and such interest will be paid: first, out of any Default Charges collected on or in respect of the related Mortgage Loan or REO Loan; and second, at any time coinciding with or following the reimbursement of such Servicing Advance, to the extent that any such Default Charges then on deposit in the Collection Account are insufficient to cover such Advance Interest, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Collection Account. As and to the extent provided in Sections 3.03(a) and 3.05(a), the Master Servicer shall reimburse itself, the Special Servicer or the Trustee, as appropriate, for any Servicing Advance made thereby as soon as practicable after funds available for such purpose are deposited in the Collection Account or a Servicing Account. (g) Notwithstanding anything to the contrary set forth herein, none of the Master Servicer, the Special Servicer or the Trustee shall be required to make any Servicing Advance (including, without limitation, an Emergency Advance) that it determines in its reasonable, good faith judgment would constitute a Nonrecoverable Servicing Advance. In addition, Nonrecoverable Servicing Advances shall be reimbursable pursuant to Section 3.05(a)(vii) out of general collections on the Mortgage Pool on deposit in the Collection Account. The determination by the Master Servicer, the Special Servicer or, if applicable, the Trustee, that it has made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced by an Officer's Certificate delivered promptly to the Trustee (or, if applicable, retained thereby), the Sponsor and the Rating Agencies, setting forth the basis for such determination, together with (if such determination is prior to the liquidation of the related Mortgage Loan or REO Property) a copy of an Appraisal of the related Mortgaged Prop

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Com Mor Pas THR Cer Se 1999-C1)

Servicing Compensation; Interest on Servicing Advances; Payment of Certain Expenses. Obligations of the Trustee and the Fiscal Agent Regarding Back-up Servicing Advances. (a) As compensation for its activities hereunder, the Master Servicer shall be entitled to receive the Master Servicing Fee with respect to each Mortgage Loan (including, without limitation, each Specially Serviced Mortgage Loan) and REO Loan. As to each Mortgage Loan and REO Loan, the Master Servicing Fee shall accrue from time to time at the applicable Master Servicing Fee Rate on the basis of the same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be changed or modified at any time following the Closing Date) and applicable law, and without giving effect to any Excess Interest that may accrue on any Hyper-Amortization Loan after its Anticipated Repayment Date. The Master Servicing Fee with respect to any Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in respect thereof. Earned but unpaid Master Servicing Fees shall be payable monthly, on a loan-by-loan basis, from payments of interest on each Mortgage Loan and REO Revenues allocable as interest on each REO Loan. The Master Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of any Mortgage Loan or REO Loan monthly out of ~~Insurance Proceeds or Liquidation Proceeds~~ general collections on the Mortgage Loans and any REO Properties on deposit in the Collection Account pursuant to ~~the extent permitted by~~ Section 3.05(a). The right to receive the Master Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the Master Servicer's responsibilities and obligations under this Agreement or except as provided in Section 3.22(d). The Master Servicer shall, monthly out of its Master Servicing Fee, pay to any Sub-Servicer retained by the Master Servicer such Sub-Servicer's sub-servicing fee (including, without limitation, any Primary Servicing Fee, if applicable), to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. (b) The Master Servicer shall be entitled to receive as additional servicing compensation: (i) Net Default Charges, assumption fees, modification fees and any similar fees (excluding Prepayment Premiums), in each case to the extent actually paid by a Mortgagor with respect to a Mortgage Loan that is not a Specially Serviced Mortgage Loan; (ii) charges for beneficiary statements or demands and amounts collected for checks returned for insufficient funds, to the extent actually paid by a Mortgagor with respect to any Mortgage Loan; (iii) any Prepayment Interest Excesses collected on the Mortgage Loans (but only to the extent such Prepayment Interest Excesses collected during any Collection Period are greater than all Prepayment Interest Shortfalls incurred in respect of the Mortgage Loans during such Collection Period)~~; and~~; (iv) interest or other income earned on deposits in the ~~Investment Accounts maintained by the Master Servicer~~Collection Account, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to ~~any such Investment~~ the Collection Account for each Collection ~~Period~~ Period); and~~, in the case of a Servicing Account or Reserve Account, only~~ (v) to the extent ~~such interest or other income is~~ not required to be paid to any Mortgagor under applicable law or under the related ~~Mortgage Loan~~ loan documents), any interest or other income earned on deposits in the Servicing Accounts and Reserve Accounts maintained by the Master Servicer; provided that with respect to the items of additional servicing compensation set forth in clauses (i) and (ii) above, the Master Servicer shall, in turn, pay the amounts described therein to the related Sub-Servicer to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. Notwithstanding anything to the contrary contained herein, any entity acting as Master Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Master Servicer, any or all of the items constituting additional servicing compensation contemplated by this Section 3.11(b). The Master Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any Sub-Servicer retained by it and the premiums for any blanket policy insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the Collection Account, and the Master Servicer shall not be entitled to reimbursement therefor except as expressly provided in this Agreement. (c) As compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Special Servicing Fee with respect to each Specially Serviced Mortgage Loan and each REO Loan. As to each Specially Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from time to time at the Special Servicing Fee Rate on the basis of the same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be modified at any time following the Closing Date) and applicable law, and without giving effect to any Excess Interest that may accrue on any Hyper- Amortization Loan after its Anticipated Repayment Date. The Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO Loan shall cease to accrue as of the date a Liquidation Event occurs in respect thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid Special Servicing Fees shall be payable monthly out of general collections on the Mortgage Loans and any REO Properties on deposit in the Collection Account pursuant to Section 3.05(a). As further compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Standby Fee with respect to each Mortgage Loan and each REO Loan. As to each Mortgage Loan and REO Loan, the Standby Fee shall accrue from time to time at the Standby Fee Rate on the basis of the same principal amount and for the same number of days respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be modified at any time following the Closing Date) and applicable law, and without giving effect to any Excess Interest that may accrue on any Hyper-Amortization Loan after its Anticipated Repayment Date. The Standby Fee with respect to any Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in respect thereof. Earned but unpaid Standby Fees shall be payable monthly out of general collections on the Mortgage Loans and any REO Properties on deposit in the Collection Account pursuant to Section 3.05(a). As further compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Workout Fee with respect to each Corrected Mortgage Loan, unless the basis on which such Mortgage Loan became a Corrected Mortgage Loan was the remediation of a circumstance or condition relating to the Mortgage Loan Seller's or ~~the~~ an Additional Warranting Party's obligation to repurchase such Mortgage Loan pursuant to Section 2.03, in which case, if such Mortgage Loan is repurchased within 120 days of the Mortgage Loan Seller's or such Additional Warranting Party's, as the case may be, notice or discovery (whichever occurred earlier) of the Document Defect or breach giving rise to such repurchase obligation, no Workout Fee will be payable from or based upon the receipt of, any Purchase Price paid by the Mortgage Loan Seller or such Additional Warranting Party, as the case may be, in satisfaction of such repurchase obligation. Furthermore, no Workout Fees will be payable from, or based upon the receipt of any Liquidation Proceeds paid by any Majority Certificateholder of the Controlling Class or the Master Servicer in connection with the purchase of all the Mortgage Loans and any REO Properties in the Trust Fund pursuant to Section 9.01 hereof. As to each Corrected Mortgage Loan, subject to the exceptions provided for in the two preceding ~~sentence~~sentences, the Workout Fee shall be payable from, and shall be calculated by application of the Workout Fee Rate to, each collection of interest (other than Default Interest and, in the case of a Hyper-Amortization Loan after its Anticipated Repayment Date, Excess Interest) and principal received on such Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with respect to any Corrected Mortgage Loan will cease to be payable if a Servicing Transfer Event occurs with respect thereto or if the related Mortgaged Property becomes an REO Property; provided that a new Workout Fee will become payable if and when such Mortgage Loan again becomes a Corrected Mortgage Loan. If the Special Servicer is terminated other than for cause or resigns in accordance with clause (ii) of the first paragraph of Section 6.04, it shall retain the right to receive any and all Workout Fees payable in respect of Mortgage Loans that became Corrected Mortgage Loans during the period that it acted as Special Servicer and were still such at the time of such termination or resignation (and the successor Special Servicer shall not be entitled to any portion of such Workout Fees), in each case until the Workout Fee for any such Mortgage Loan ceases to be payable in accordance with the preceding sentence. As further compensation for its activities hereunder, the Special Servicer shall also be entitled to receive a Liquidation Fee with respect to each Specially Serviced Mortgage Loan or REO Property as to which it receives any full or discounted payoff from the related Mortgagor or any Liquidation Proceeds (other than in connection with the purchase of any such Specially Serviced Mortgage Loan or REO Property by the Special Servicer pursuant to Section 3.18, by the Master Servicer or the Majority Certificateholder of the Controlling Class pursuant to Section 3.18 or Section 9.01, or by the Mortgage Loan Seller or ~~the~~ an Additional Warranting Party pursuant to Section 2.03 within 120 days of its discovery or notice (whichever occurred earlier) of the breach or Document Defect that gave rise to the repurchase obligation, and other than in connection with the condemnation or other governmental taking of a Mortgaged Property or REO Property). As to each such Specially Serviced Mortgage Loan or REO Property, the Liquidation Fee shall be payable from, and shall be calculated by application of the Liquidation Fee Rate to, such full or discounted payoff and/or such Liquidation Proceeds (excluding any portion of such payoff and/or proceeds that represents accrued but unpaid Excess Interest with respect to a Hyper-Amortization Loan after its Anticipated Repayment Date or accrued but unpaid Default Interest); provided that no Liquidation Fee will be payable with respect to any such Specially Serviced Mortgage Loan that becomes a Corrected Mortgage Loan; and provided, further, that (without limiting the Special Servicer's right to any Workout Fee that is properly payable therefrom), no Liquidation Fee will be payable from, or based upon the receipt of, Liquidation Proceeds collected as a result of any purchase of a Specially Serviced Mortgage Loan or REO Property described in the parenthetical to the first sentence of this paragraph or in connection with a condemnation or other governmental taking of a Mortgaged Property or REO Property. Notwithstanding anything to the contrary herein, a Liquidation Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid from the same proceeds on or with respect to such Mortgage Loan. The Special Servicer's right to receive the Special Servicing Fee, the Standby Fee, the Workout Fee and/or the Liquidation Fee may not be transferred in whole or in part except in connection with the transfer of all of the Special Servicer's responsibilities and obligations under this Agreement. (d) The Special Servicer shall be entitled to receive as additional special servicing compensation: (i) (A) to the extent allocable to the period when any Mortgage Loan is a Specially Serviced Mortgage Loan or to the extent allocable to an REO Loan, any Net Default Charges actually collected on such Mortgage Loan or REO Loan, as the case may be, and (B) any assumption fees, modification fees or similar fees (excluding Prepayment Premiums) actually collected on or with respect to Specially Serviced Mortgage Loans or REO Loans; and (ii) interest or other income earned on deposits in the REO Account, if established, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to the REO Account for each Collection Period). To the extent the amounts described in clause (i)(B) of the preceding paragraph are collected by the Master Servicer, the Master Servicer shall promptly pay such amounts to the Special Servicer and shall not be required to deposit such amounts in the Collection Account pursuant to Section 3.04(a). Additional servicing compensation to which the Master Servicer (or, if so provided by the applicable Sub-Servicing Agreement, any Sub-Servicer retained thereby) is entitled pursuant to Section 3.11(b) in the form of assumption fees, modification fees and any similar fees (excluding Prepayment Premiums) collected by the Special Servicer on Mortgage Loans that are not Specially Serviced Mortgage Loans or REO Loans, or in the form of charges for beneficiary statements or demands and amounts collected for checks returned for insufficient funds with respect to any Mortgage Loans (including, without limitation, Specially Serviced Mortgage Loans), shall be paid promptly to the Master Servicer by the Special Servicer. Notwithstanding anything to the contrary contained herein, any entity acting as Special Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Special Servicer, any or all of the items constituting additional special servicing compensation contemplated by this Section 3.11(d). The Special Servicer shall be required to pay out of its own funds all overhead, general and administrative expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any Sub-Servicers retained by it and the premiums for any blanket policy obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the Collection Account or the REO Account and the Master Servicer is not required to advance such expenses at the direction of the Special Servicer, and the Special Servicer shall not be entitled to reimbursement except as expressly provided in this Agreement. (e) If the Master Servicer or Special Servicer is required under this Agreement to make a Servicing Advance, but neither does so within 10 days after such Servicing Advance is required to be made, the Trustee shall, if it has actual knowledge of such failure on the part of the Master Servicer or Special Servicer, as the case may be, give notice of such failure, as applicable, to the Master Servicer and/or the Special Servicer, as appropriate. If such Servicing Advance is not made by the Master Servicer or the Special Servicer within ~~three (3)~~ one Business ~~Days~~ Day after such notice then (subject to Section 3.11(g) below), the Trustee shall make such Servicing Advance. If the Trustee fails to make any Servicing Advance required to be made under this Section 3.11(e), then (subject to Section 3.11(g) below) the Fiscal Agent shall make such Advance within one Business Day of such failure on the part of the Trustee, whereupon the Trustee shall be deemed not to be in default under this Agreement. Any failure by the Master Servicer or the Special Servicer to make a Servicing Advance it is required to make hereunder shall constitute an Event of Default by the Master Servicer or the Special Servicer, as the case may be, subject to and as provided in Section 7.01(a). (f) As and to the extent permitted by Section 3.05(a), the Master Servicer, the Special Servicer (to the extent it has not already been reimbursed for any such Servicing Advance by the Master Servicer) ), the Trustee and the ~~Trustee~~ Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each Servicing Advance made thereby (out of its own funds) for so long as such Servicing Advance is outstanding, and such interest will be paid: first, out of any Default Charges collected on or in respect of the related Mortgage Loan or REO Loan; and second, at any time coinciding with or following the reimbursement of such Servicing Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Collection Account. As and to the extent provided in Sections 3.03(a) and 3.05(a), the Master Servicer shall reimburse itself, the Special Servicer or the Trustee, as appropriate, for any Servicing Advance made thereby as soon as practicable after funds available for such purpose are deposited in the Collection Account or a Servicing Account. (g) Notwithstanding anything to the contrary set forth herein, none of the Master Servicer, the Special Servicer or the Trustee shall be required to make any Servicing Advance (including, without limitation, an Emergency Advance) that it determines in its reasonable, good faith judgment would constitute a Nonrecoverable Servicing Advance. In addition, Nonrecoverable Servicing Advances shall be reimbursable pursuant to Section 3.05(a)(vii) out of general collections on the Mortgage Pool on deposit in the Collection Account. The determination by the Master Servicer, the Special Servicer or, if applicable, the Trustee, that it has made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced by an Officer's Certificate delivered promptly to the Trustee (or, if applicable, retained thereby), the Sponsor and the Rating Agencies, setting forth the basis for such determination, together with (if such determination is prior to the liquidation of the related Mortgage Loan or REO Property) a copy of an Appraisal of the related Mortgaged ProTrus

Appears in 1 contract

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

Servicing Compensation; Interest on Servicing Advances; Payment of Certain Expenses. Obligations of the Trustee and the Fiscal Agent Regarding Back-up Servicing Advances. (a) As compensation for its activities hereunder, the Master Servicer shall be entitled to receive the Master Servicing Fee with respect to each Mortgage Loan (including, without limitation, each Specially Serviced Mortgage Loan) and REO Loan. As to each such Mortgage Loan and REO Loan, the Master Servicing Fee shall accrue ~~from time to time~~ at the applicable Master Servicing Fee Rate on the basis of the same principal amount and for the same ~~number of days~~ period respecting which ~~any~~ the related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be changed or modified at any time following the Closing Date) and applicable law, and without giving effect to any Excess Interest that may accrue on any Hyper-Amortization Loan after its Anticipated Repayment Datecomputed. The Master Servicing Fee with respect to any Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in respect thereof. Earned but unpaid Master Servicing Fees shall be payable monthly, on a loan-by-loan basis, from payments of interest on each Mortgage Loan and REO Revenues allocable as interest on each REO Loan. The Master Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of any Mortgage Loan or REO Loan out of Insurance Proceeds or Liquidation ~~Proceeds~~ Proceeds, to the extent permitted by Section 3.05(a). The right to receive the Master Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the Master Servicer's responsibilities and obligations under this Agreement or except as provided in Section 3.22(d). The Master Servicer shall, ~~monthly out of its Master Servicing Fee~~monthly, pay to the Special Servicer its Standby Fee and any Sub-Servicer retained by the Master Servicer such Sub-Servicer's sub-servicing fee (including, without limitation, any Primary Servicing Fee, if applicable), to out of the ~~extent such Sub-Servicer is entitled thereto under the applicable Sub-~~Master Servicer's Master Servicing ~~Agreement~~Fee. (b) ~~The Master Servicer shall be entitled to receive as additional~~ Additional servicing ~~compensation: (i) Net Default~~ compensation in the form of Penalty Charges, assumption fees, modification ~~fees~~ fees, charges for beneficiary statements or demands, amounts collected for checks returned for insufficient funds and any similar fees (excluding Prepayment Premiums), in each case to the extent actually paid by a Mortgagor with respect to a Mortgage Loan that is not a Specially Serviced Mortgage Loan; , may be retained by the Master Servicer (iior by the related Sub-Servicer if so provided by the applicable Sub-Servicing Agreement) ~~charges for beneficiary statements or demands~~ and ~~amounts collected for checks returned for insufficient funds,~~ are not required to be deposited in the ~~extent actually paid by a Mortgagor with respect~~ Certificate Account. The Master Servicer shall also be entitled to ~~any Mortgage Loan;~~ additional servicing compensation in the form of (~~iii~~i) any Prepayment Interest Excesses and Balloon Payment Interest Excesses collected on the Mortgage ~~Loans~~ Loans; (but only to the extent such Prepayment Interest Excesses collected during any Collection Period are greater than all Prepayment Interest Shortfalls incurred in respect of the Mortgage Loans during such Collection Period); and (ivii) interest or other income earned on deposits in the ~~Investment Accounts maintained by the Master Servicer~~Certificate Account, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to ~~any such Investment~~ the Certificate Account for each Collection ~~Period and~~Period), ~~in the case of a Servicing Account or Reserve Account, only~~ and (iii) to the extent ~~such interest or other income is~~ not required to be paid to any Mortgagor under applicable law or under the related Mortgage Loan documents); provided that with respect to the items of additional servicing compensation set forth in clauses (i) and (ii) above, the Master Servicer shall, in turn, pay the amounts described therein to the related Sub-Servicer to the extent such Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement. Notwithstanding anything to the contrary contained hereinMortgage, any ~~entity acting as Master Servicer shall be entitled to assign to an Affiliate~~ interest or other income earned on deposits in the right to receive, for so long as (but only for so long as) such entity continues to act as Master Servicer, any or all of the items constituting additional servicing compensation contemplated by this Section 3.11(b)Servicing Accounts maintained thereby. The Master Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any Sub-Servicer retained by it and the premiums for any blanket policy insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the ~~Collection~~ Certificate Account, and the Master Servicer shall not be entitled to reimbursement therefor except as expressly provided in this Agreement. (c) As compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Special Servicing Fee with respect to each Specially Serviced Mortgage Loan and each REO Loan. As to each Specially Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from time to time at the Special Servicing Fee Rate on the basis of the same principal amount and for the same ~~number of days~~ period respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed under the terms of the related Mortgage Note (as such terms may be modified at any time following the Closing Date) and applicable law, and without giving effect to any Excess Interest that may accrue on any Hyper- Amortization Loan after its Anticipated Repayment Datecomputed. The Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO Loan shall cease to accrue as of the date a Liquidation Event occurs in respect thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid Special Servicing Fees shall be payable monthly out of general collections on the Mortgage Loans and any REO Properties on deposit in the ~~Collection~~ Certificate Account pursuant to Section 3.05(a). As further compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Standby Fee with respect to each Mortgage Loan and each REO Loan. As to each Mortgage Loan and each REO Loan, the Standby Fee shall accrue from time to time at the Standby Fee Rate on the basis of the same principal amount and for the same period respecting which any related interest payment due on such Mortgage Loan or deemed to be due on such REO Loan is computed. Standby Fees shall be payable monthly by the Master Servicer out of its Master Servicing Fees with respect to each Mortgage Loan and each REO Loan. As further compensation for its activities hereunder, the Special Servicer shall be entitled to receive the Workout Fee with respect to each Corrected Mortgage Loan, unless the basis on which such Mortgage Loan became a Corrected Mortgage Loan was the remediation of a circumstance or condition relating to the Mortgage Loan Seller's or the Additional Warranting Party's obligation to repurchase such Mortgage Loan pursuant to Section 2.03, in which case, if such Mortgage Loan is repurchased within the 120-day period described in Section 2.03(a), no Workout Fee will be payable from or based upon the receipt of, any Purchase Price paid by the Mortgage Loan Seller or the Additional Warranting Party in satisfaction of such repurchase obligation. Furthermore, no Workout Fees will be payable from or based upon the receipt of any Liquidation Proceeds paid by any Majority Certificateholder of the Controlling Class or the Master Servicer in connection with the purchase of all the Mortgage Loans and any REO Properties in the Trust Fund pursuant to Section 9.01 hereof. As to each Corrected Mortgage Loan, subject to the exceptions provided for in the two preceding ~~sentence~~sentences, the Workout Fee shall be payable from, and shall be calculated by application of the Workout Fee Rate to, each collection of interest (other than Default ~~Interest and, in the case of a Hyper-Amortization Loan after its Anticipated Repayment Date, Excess~~ Interest) and principal received on such Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with respect to any Corrected Mortgage Loan will cease to be payable if a Servicing Transfer Event occurs with respect thereto or if the related Mortgaged Property becomes an REO Property; provided that a new Workout Fee will become payable if and when such Mortgage Loan again becomes a Corrected Mortgage Loan. If the Special Servicer is terminated other than for cause or resigns in accordance with clause (ii) of the first paragraph of Section 6.04, it shall retain the right to receive any and all Workout Fees payable in respect of Mortgage Loans that became Corrected Mortgage Loans during the period that it acted as Special Servicer and were still such at the time of such termination or resignation (and the successor Special Servicer shall not be entitled to any portion of such Workout Fees), in each case until the Workout Fee for any such Mortgage Loan ceases to be payable in accordance with the preceding sentence. As further compensation for its activities hereunder, the Special Servicer shall also be entitled to receive a Liquidation Fee with respect to each Specially Serviced Mortgage Loan or REO Property as to which it receives any full or discounted payoff from the related Mortgagor or any Liquidation Proceeds (other than in connection with the purchase of any such Specially Serviced Mortgage Loan or REO Property by the Special Servicer pursuant to Section 3.18, by the Master Servicer or the Majority Certificateholder of the Controlling Class pursuant to Section 3.18 or Section ~~9.01,~~ 9.01 or by the Mortgage Loan Seller or the Additional Warranting Party pursuant to Section 2.03 within 120 days of its discovery or notice ~~(whichever occurred earlier)~~ of the breach or Document Defect that gave rise to the repurchase obligation, and other than in connection with the condemnation or other governmental taking of a Mortgaged Property or REO Property). As to each such Specially Serviced Mortgage Loan or REO Property, the Liquidation Fee shall be payable from, and shall be calculated by application of the Liquidation Fee Rate to, such full or discounted payoff and/or such Liquidation Proceeds (excluding any portion of such payoff and/or proceeds that represents accrued but unpaid Excess Interest with respect to a Hyper-Amortization Loan after its Anticipated Repayment Date or accrued but unpaid Default Interest)Proceeds; provided that no Liquidation Fee will be payable with respect to any such Specially Serviced Mortgage Loan that becomes a Corrected Mortgage Loan; and provided, further, that (without limiting the Special Servicer's right to any Workout Fee that is properly payable therefrom), no Liquidation Fee will be payable from, or based upon the receipt of, Liquidation Proceeds collected as a result of any purchase of a Specially Serviced Mortgage Loan or REO Property described in the parenthetical to the first sentence of this paragraph or in connection with a condemnation or other governmental taking of a Mortgaged Property or REO Property. Notwithstanding anything to the contrary herein, a Liquidation Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid from the same proceeds on or with respect to such Mortgage Loan. The Special Servicer's right to receive the Special Servicing Fee, the Standby Fee, the Workout Fee and/or the Liquidation Fee may not be transferred in whole or in part except in connection with the transfer of all of the Special Servicer's responsibilities and obligations under this Agreement. (d) ~~The Special Servicer shall be entitled to receive as additional special~~ Additional servicing ~~compensation: (i) (A) to~~ compensation in the extent allocable to the period when any Mortgage Loan is a Specially Serviced Mortgage Loan or to the extent allocable to an REO Loan, any Net Default Charges actually collected on such Mortgage Loan or REO Loan, as the case may be, form of assumption fees and ~~(B) any assumption fees,~~ modification fees ~~or similar fees (excluding Prepayment Premiums) actually collected~~ received on or with respect to Specially Serviced Mortgage Loans shall be promptly paid to the Special Servicer by the Master Servicer and shall not be required to be deposited in the Certificate Account pursuant to Section 3.04(a). Additional servicing compensation in the form of late payment charges, assumption fees and modification fees that the Master Servicer (or ~~REO Loans; and~~ the related Sub-Servicer if so provided by the applicable Sub-Servicing Agreement) is entitled to and that are collected by the Special Servicer, shall be paid promptly to the Master Servicer by the Special Servicer. The Special Servicer shall also be entitled to additional servicing compensation in the form of: (iii) interest or other income earned on deposits in the REO Account, if established, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to the REO Account for each Collection Period)~~. To~~ ; (ii) to the extent ~~the amounts described in clause (i)(B) of the preceding paragraph are collected by the Master Servicer, the Master Servicer shall promptly pay such amounts to the Special Servicer and shall~~ not be required to ~~deposit such amounts~~ be paid to any Mortgagor under applicable law, any interest or other income earned on deposits in the ~~Collection Account pursuant~~ Servicing Accounts maintained thereby; and (iii) Net Penalty Charges collected on and allocable to Section 3.04(a). Additional servicing compensation to which the Master Servicer (or, if so provided by the applicable Sub-Servicing Agreement, any Sub-Servicer retained thereby) is entitled pursuant to Section 3.11(b) in the form of assumption fees, modification fees and any similar fees (excluding Prepayment Premiums) collected by the Special Servicer on Mortgage Loans that are not Specially Serviced Mortgage Loans or and REO Loans, or in the form of charges for beneficiary statements or demands and amounts collected for checks returned for insufficient funds with respect to any Mortgage Loans (including, without limitation, Specially Serviced Mortgage Loans), shall be paid promptly to the Master Servicer by the Special Servicer. Notwithstanding anything to the contrary contained herein, any entity acting as Special Servicer shall be entitled to assign to an Affiliate the right to receive, for so long as (but only for so long as) such entity continues to act as Special Servicer, any or all of the items constituting additional special servicing compensation contemplated by this Section 3.11(d). The Special Servicer shall be required to pay out of its own funds all overhead, general and administrative expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any Sub-Servicers retained by it and the premiums for any blanket policy obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses are not payable directly out of the ~~Collection~~ Certificate Account or the REO ~~Account and the Master Servicer is not required to advance such expenses at the direction of the Special Servicer~~Account, and the Special Servicer shall not be entitled to reimbursement except as expressly provided in this Agreement. (e) If the Master Servicer or Special Servicer is required under this Agreement to make a Servicing Advance, but neither does so within 10 15 days after such Servicing Advance is required to be made, the Trustee shall, if it has actual knowledge of such failure on the part of the Master Servicer or Special Servicer, as the case may be, give notice of such failure, as applicable, to the Master Servicer ~~and/or~~ and the Special Servicer~~, as appropriate~~. If such Servicing Advance is not made by the Master Servicer or the Special Servicer within ~~three (3)~~ one Business ~~Days~~ Day after such notice then (subject to Section 3.11(g) below), the Trustee shall make such Servicing Advance. If the Trustee fails to make any Servicing Advance required to be made under this Section 3.11(e), then (subject to Section 3.11(g) below) the Fiscal Agent shall make such Advance within one Business Day of such failure on the part of the Trustee and, thereby, the Trustee shall be deemed not to be in default under this Agreement. Any failure by the Master Servicer or the Special Servicer to make a Servicing Advance it is required to make hereunder shall constitute an Event of Default by the Master Servicer or the Special Servicer, as the case may be, subject to and as provided in Section ~~7.01(a~~7.01(a)(iv). (f) As and to the extent permitted by Section 3.05(a), the Master Servicer, the Special ~~Servicer (to~~ Servicer, the ~~extent it has not already been reimbursed for any such Servicing Advance by the Master Servicer)~~ Trustee and the ~~Trustee~~ Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each Servicing Advance made thereby (out of its own funds) for so long as such Servicing Advance is outstanding, and such interest will be paid: first, out of any ~~Default~~ Penalty Charges collected on or in respect of the related Mortgage Loan during, and allocable to, the period, if any, that it was a Specially Serviced Mortgage Loan or an REO Loan; and second, ~~at any time coinciding with or following the reimbursement of~~ once such Servicing ~~Advance~~Advance is reimbursed, out of general collections on the Mortgage Loans and any REO Properties on deposit in the ~~Collection~~ Certificate Account. As and to the extent provided in Sections 3.03(a) and 3.05(a), the Master Servicer shall reimburse itself, the Special ~~Servicer~~ Servicer, the Trustee or the ~~Trustee~~Fiscal Agent, as appropriate, for any Servicing Advance made thereby as soon as practicable after funds available for such purpose are deposited in the ~~Collection~~ Certificate Account or a Servicing Account. (g) Notwithstanding anything to the contrary set forth herein, none of the Master Servicer, the Special ~~Servicer~~ Servicer, the Trustee or the ~~Trustee~~ Fiscal Agent shall be required to make any Servicing Advance (including, without limitation, an Emergency Advance) that it determines in its reasonable, good faith judgment would constitute a Nonrecoverable Servicing Advance. In addition, Nonrecoverable Servicing Advances shall be reimbursable pursuant to Section 3.05(a)(vii) out of general collections on the Mortgage Pool on deposit in the ~~Collection~~ Certificate Account. The determination by the Master Servicer, the Special Servicer or, if applicable, the ~~Trustee~~Trustee or the Fiscal Agent, that it has made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced by an Officer's Certificate delivered promptly to the Trustee (or, if applicable, retained thereby), the Fiscal Agent (or, if applicable, retained thereby), the Sponsor and the Rating Agencies, setting forth the basis for such determination, together with (if such determination is prior to the liquidation of the related Mortgage Loan or REO Property) a copy of an Appraisal of the related Mortgaged ~~Pro~~Property or REO Property, as the case may be, which shall have been performed within the twelve months preceding such determination, and further accompanied by any other information, including, without limitation, engineers' reports, environmental surveys, inspection reports, rent rolls, income and expense statements or similar reports, that the Master Servicer or the Special Servicer may have obtained and that supports such determination. If such an Appraisal shall not have been required and performed pursuant to the terms of this Agreement, the Master Servicer or the Special Servicer, as the case may be, may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of a Servicing Advance, obtain an Appraisal for such purpose at the expense of the Trust Fund. The Trustee and the Fiscal Agent shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer or the Special Servicer with resp

Appears in 1 contract

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

Common use of Servicing Compensation; Interest on Servicing Advances; Payment of Certain Expenses Clause in Contracts