Delinquency Advances. The Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in the Collection Account from its own funds an amount equal to such Delinquency Advance, (ii) cause to be made an appropriate entry in the records of the Custodial Account that funds in such account being held for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to make such Delinquency Advance or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating the amount of such Delinquency Advance. Any such funds being held in the Custodial Account for future distribution and so used shall be replaced by the Servicer from its own funds by deposit in such Custodial Account to the extent required on or before any future Servicer Remittance Date in which such funds would be due. The Servicer shall be entitled to be reimbursed for all Delinquency Advances of its own funds made pursuant to this Section as provided in Section 3.8 hereof. Subject to and in accordance with the provisions of Article VII, in the event that the Servicer fails to remit a Delinquency Advance required to be made pursuant to this Section 3.19, the Master Servicer shall, unless it determines that such Delinquency Advance would constitute a Nonrecoverable Advance, itself make, or shall cause the successor Servicer or the Seller (as owner of the servicing rights with respect to the Mortgage Loans) to make, such Delinquency Advance on or before the Distribution Date following the Servicer Remittance Date on which such Delinquency Advance should have been made. The obligation to make Delinquency Advances with respect to any Mortgage Loan shall continue if such Mortgage Loan has been foreclosed or otherwise terminated and the related Mortgaged Property has not been liquidated. The Servicer shall deliver to the Master Servicer on the related Servicer Remittance Date an Officer’s Certificate of a Servicing Officer indicating the amount of any proposed Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Aegis Asset Backed Securities Corp), Pooling and Servicing Agreement (Aegis Asset Backed Securities Trust Mortgage Pass-Through Certificates, Series 2005-4), Pooling and Servicing Agreement (Aegis Asset Backed Securities Corp)
Delinquency Advances. The Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in Advance pursuant to the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advancedefinition thereof. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in the Collection Account from its own funds an amount equal to such Delinquency Advance, (ii) cause to be made an appropriate entry in the records of the Custodial Account that funds in such account being held for future distribution payment or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to make such Delinquency Advance or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating the amount of such Delinquency Advance. Any such funds being held in the Custodial Account for future distribution payment and so used shall be replaced by the Servicer from its own funds by deposit in such Custodial Account to the extent required on or before any future Servicer Remittance Date in which such funds would be due. The Servicer shall be entitled to be reimbursed for all Delinquency Advances of its own funds made pursuant to this Section as provided in Section 3.8 hereof. Subject to and in accordance with the provisions of Article VII, in the event that the Servicer fails to remit a Delinquency Advance required to be made pursuant to this Section 3.19, the Master Servicer shall, unless it determines that such Delinquency Advance would constitute a Nonrecoverable Advance, itself make, or shall cause the successor Servicer or AMC (on behalf of the Seller (Seller, as owner of the servicing rights with respect to the Mortgage Loans) to make, such Delinquency Advance on or before the Distribution Payment Date following the Servicer Remittance Date on which such Delinquency Advance should have been made. The obligation to make Delinquency Advances with respect to any Mortgage Loan shall continue if such Mortgage Loan has been foreclosed or otherwise terminated and the related Mortgaged Property has not been liquidated, provided that in no event shall the Servicer be required to make any proposed Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. The Servicer shall deliver to the Master Servicer on the related Servicer Remittance Date an Officer’s Certificate of a Servicing Officer indicating the amount of any proposed Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance.
Appears in 2 contracts
Samples: Transfer and Servicing Agreement (Aegis Asset Backed Securities Trust 2005-3), Transfer and Servicing Agreement (Aegis Asset Backed Securities Trust 2005-2)
Delinquency Advances. The Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in the Collection Account from its own funds an amount equal to such Delinquency Advance, (ii) cause to be made an appropriate entry in the records of the Custodial Account that funds in such account being held for future distribution payment or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to make such Delinquency Advance or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating the amount of such Delinquency Advance. Any such funds being held in the Custodial Account for future distribution payment and so used shall be replaced by the Servicer from its own funds by deposit in such Custodial Account to the extent required on or before any future Servicer Remittance Date in which such funds would be due. The Servicer shall be entitled to be reimbursed for all Delinquency Advances of its own funds made pursuant to this Section as provided in Section 3.8 hereof. Subject to and in accordance with the provisions of Article VII, in the event that the Servicer fails to remit a Delinquency Advance required to be made pursuant to this Section 3.19, the Master Servicer shall, unless it determines that such Delinquency Advance would constitute a Nonrecoverable Advance, itself make, or shall cause the successor Servicer or AMC (on behalf of the Seller (Seller, as owner of the servicing rights with respect to the Mortgage Loans) to make, such Delinquency Advance on or before the Distribution Payment Date following the Servicer Remittance Date on which such Delinquency Advance should have been made. The obligation to make Delinquency Advances with respect to any Mortgage Loan shall continue if such Mortgage Loan has been foreclosed or otherwise terminated and the related Mortgaged Property has not been liquidated. The Servicer shall deliver to the Master Servicer on the related Servicer Remittance Date an Officer’s Certificate of a Servicing Officer indicating the amount of any proposed Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance.
Appears in 2 contracts
Samples: Transfer and Servicing Agreement (Aegis Asset Backed Securities Corp), Transfer and Servicing Agreement (Aegis Asset Backed Securities Corp)
Delinquency Advances. The (a) On each Delinquency Advance Date, the Master Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in into the Collection Distribution Account from its own funds an amount equal to such the aggregate amount of Delinquency AdvanceAdvances with respect to the Mortgage Loans (including, without limitation, the Non-Serviced Mortgage Loans), if any, to be made in respect of the related Distribution Date, (ii) cause to be made an appropriate entry apply amounts held in the records of Certificate Account or, with respect to the Mortgage Loans related to the Serviced Whole Loans, the related Serviced Whole Loan Custodial Account that funds in allocable to such account being held Mortgage Loans, for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to Certificateholders in subsequent months in discharge of any such obligation to make such Delinquency Advance Advances, or (iii) make Delinquency Advances in the form of any combination of amounts specified in clauses (i) and (ii) aggregating the total amount of Delinquency Advances to be made; provided, that if Late Collections (net of related Workout Fees) of the delinquent Monthly Payments for which Delinquency Advances are to be made for the related Distribution Date, are on deposit in the Certificate Account or, if applicable, the amount allocable to a Mortgage Loan in the related Serviced Whole Loan Custodial Account, and available to make such Delinquency AdvanceAdvances, the Master Servicer shall utilize such Late Collections to make such Advances pursuant to clause (ii) above. Any such funds being amounts held in the Certificate Account, or with respect to the Serviced Whole Loan, the related Serviced Whole Loan Custodial Account Account, for future distribution and so used to make Delinquency Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer from its own funds by deposit in such the Certificate Account or the related Serviced Whole Loan Custodial Account to the extent required on or before the next succeeding Determination Date (to the 242 extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such Delinquency Advances were made). If, as of 3:00 p.m. (New York City time) on any future Master Servicer Remittance Date in which such funds would be due. The Servicer Date, the Trustee shall be entitled not have received any Delinquency Advance required to be reimbursed for all Delinquency Advances of its own funds made by the Master Servicer pursuant to this Section 4.03(a) (and the Master Servicer shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a Delinquency Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to facsimile no. (000) 000-0000 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (000) 000-0000 (Attention: Master Servicing Manager) (or such alternative number provided by the Master Servicer to the Trustee in writing) as provided soon as possible, but in any event before 5:00 p.m. (New York City time) on such day. If after such notice the Trustee does not receive the full amount of such Delinquency Advances by 11:00 a.m. (New York City time) on the Business Day immediately following such Master Servicer Remittance Date, then the Trustee shall make the portion of such Delinquency Advances that was required to be, but was not, made by the Master Servicer pursuant to this Section 3.8 hereof4.03(a). Subject No Delinquency Advances shall be made by the Master Servicer, the Trustee or the Fiscal Agent with respect to and in accordance with any Serviced B Notes or any other companion loans or subordinate notes.
(b) If the provisions of Article VII, in the event that the Servicer Trustee fails to remit make a Delinquency Advance required to be made pursuant by it hereunder, the Fiscal Agent shall make such advance no later than 1:00 p.m. (New York City time) on the Business Day immediately following such Master Servicer Remittance Date. The making of such Advance by the Fiscal Agent shall cure the failure by the Trustee to this Section 3.19, make such Advance.
(c) The aggregate amount of Delinquency Advances to be made by the Master Servicer shalland, unless it determines that such Delinquency Advance would constitute a Nonrecoverable Advanceif applicable, itself make, or shall cause the successor Servicer Trustee or the Seller (as owner Fiscal Agent in respect of the servicing rights Mortgage Loans (including, without limitation, Assumed Monthly Payments for Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Loans for any Distribution Date (including the Non-Serviced Mortgage Loans and any REO Loan related thereto) shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Workout Fees payable hereunder (and, with respect to the Non-Serviced Mortgage Loans) to make, net of all workout fees payable under the COMM 2005-LP5 Pooling and Servicing Agreement and the GE 2005-C2 Pooling and Servicing Agreement), that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the same month as such Delinquency Advance on or before the Distribution Date following and that were not paid by or on behalf of the Servicer Remittance related Mortgagors or otherwise collected as of the close of business on the later of the related Due Date on which such Delinquency Advance should have been madeor the last day of the related Collection Period. The obligation to make Delinquency Advances Notwithstanding the foregoing, if (i) an Appraisal Reduction Amount exists with respect to any Mortgage Loan shall continue (other than the Non-Serviced Mortgage Loans) that is a Required Appraisal Loan, or (ii) if such Mortgage Loan has been foreclosed or otherwise terminated and the related Mortgaged Property has not been liquidated. The Servicer shall deliver to the Master Servicer on has been notified by the COMM 2005-LP5 Master Servicer or the GE 2005-C2 Master Servicer that an Appraisal Reduction Amount exists with respect to the General Motors Building Mortgage Loan, the 000 Xxxx 00xx Xxxxxx Mortgage Loan, the Loews Miami Beach Mortgage Loan or the Wellpoint Office Tower Mortgage Loan and that the General Motors Building Mortgage Loan, the 000 Xxxx 00xx Xxxxxx Mortgage Loan, the Loews Miami Beach Mortgage Loan or the Wellpoint Office Tower Mortgage Loan Mortgage Loan is a loan subject to an "Appraisal Reduction Amount" under the COMM 2005- 243 LP5 Pooling and Servicing Agreement and the GE 2005-C2 Pooling and Servicing Agreement, as applicable, then, in the event of subsequent delinquencies thereon, the interest portion of the Delinquency Advance in respect of such Required Appraisal Loan or Non-Serviced Mortgage Loan, as the case may be, for the related Servicer Remittance Distribution Date an Officer’s Certificate shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of a Servicing Officer indicating such Delinquency Advance) by the product of (a) the amount of the interest portion of such Delinquency Advance for such Required Appraisal Loan or Non-Serviced Mortgage Loan, as applicable, for such Distribution Date without regard to this sentence, multiplied by (b) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Loan or Non-Serviced Mortgage Loan, as applicable, immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any allocable to such Mortgage Loan, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Loan or Non-Serviced Mortgage Loan, as applicable, immediately prior to such Distribution Date. Notwithstanding anything herein to the contrary, no Delinquency Advance shall be required to be made hereunder if such Delinquency Advance would, if made, constitute a Nonrecoverable Delinquency Advance. In addition, any Person, in considering whether (i) any Delinquency Advance is or (ii) any proposed Delinquency Advance thatAdvance, if made, would constitute, a Nonrecoverable Delinquency Advance, will be entitled to give due regard to the existence of any Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts with respect to other Mortgage Loans, the recovery of which is being deferred or delayed at the time of such consideration by the Master Servicer or, if applicable, the Trustee, in the good faith judgment light of the fact that proceeds on the related Mortgage Loan are a source of recovery not only for the Delinquency Advance under consideration, but also as a potential source of recovery of such Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts which are or may be being deferred or delayed. With respect to the General Motors Building Mortgage Loan, the 000 Xxxx 00xx Xxxxxx Mortgage Loan, the Loews Miami Beach Mortgage Loan and the Wellpoint Office Tower Mortgage Loan, the Master Servicer shall make its determination that it has made a Delinquency Advance on such Mortgage Loan that is a Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance, if made, would constitute a Nonrecoverable Delinquency Advance with respect to such Mortgage Loan in accordance with this Section 4.03(b) independently of any determination made by the COMM 2005-LP5 Master Servicer or the GE 2005-C2 Master Servicer (or any master servicer with respect to a commercial mortgage securitization holding another General Motors Building Companion Loan, 000 Xxxx 00xx Xxxxxx Companion Loan, Loews Miami Beach Companion Loan or Wellpoint Office Tower Companion Loan) under the COMM 2005-LP5 Pooling and Servicing Agreement and the GE 2005-C2 Pooling and Servicing Agreement (or any related Other Pooling and Servicing Agreement with respect to a General Motors Building Companion Loan, 000 Xxxx 00xx Xxxxxx Companion Loan, Loews Miami Beach Companion Loan or Wellpoint Office Tower Companion Loan) in respect of the General Motors Building Companion Loan, the 000 Xxxx 00xx Xxxxxx Companion Loan, the Loews Miami Beach Companion Loan or the Wellpoint Office Tower Companion Loan. If the Master Servicer determines that a proposed Delinquency Advance with respect to the General Motors Building Mortgage Loan, the 000 Xxxx 00xx Xxxxxx Mortgage Loan, the Loews Miami Beach Mortgage Loan or the Wellpoint Office Tower Mortgage Loan, if made, or any 244 outstanding Delinquency Advance with respect to the General Motors Building Mortgage Loan, the 000 Xxxx 00xx Xxxxxx Mortgage Loan, the Loews Miami Beach Mortgage Loan or the Wellpoint Office Tower Mortgage Loan previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide the COMM 2005-LP5 Servicer or GE 2005-C2 Servicer, as applicable, (and any master servicer with respect to a commercial mortgage securitization holding a General Motors Building Companion Loan, 000 Xxxx 00xx Xxxxxx Companion Loan, Loews Miami Beach Companion Loan or Wellpoint Office Tower Companion Loan) written notice of such determination within one Business Day of the date of such determination (except to the extent that the Master Servicer is also a master servicer with respect to any General Motors Building Companion Loan, 000 Xxxx 00xx Xxxxxx Companion Loan, Loews Miami Beach Companion Loan or Wellpoint Office Tower Companion Loan). If the Master Servicer receives written notice from the COMM 2005-LP5 Servicer or GE 2005-C2 Servicer, as applicable, (or any master servicer with respect to a commercial mortgage securitization holding a General Motors Building Companion Loan, 000 Xxxx 00xx Xxxxxx Companion Loan, Loews Miami Beach Companion Loan or Wellpoint Office Tower Companion Loan) that it has determined, with respect to the General Motors Building Companion Loan, 000 Xxxx 00xx Xxxxxx Companion Loan, Loews Miami Beach Companion Loan or Wellpoint Office Tower Companion Loan, that any proposed advance of principal and/or interest with respect to the related General Motors Building Companion Loan, 000 Xxxx 00xx Xxxxxx Companion Loan, Loews Miami Beach Companion Loan or Wellpoint Office Tower Companion Loan would be, or any outstanding advance of principal and interest is, a nonrecoverable advance of principal and/or interest, then such determination shall be binding on the Certificateholders and none of the Master Servicer, the Trustee or the Fiscal Agent shall make any additional Delinquency Advances with respect to the General Motors Building Mortgage Loan, the 000 Xxxx 00xx Xxxxxx Mortgage Loan, the Loews Miami Beach Mortgage Loan or the Wellpoint Office Tower Mortgage Loan unless the Master Servicer has consulted with the other related master servicers and they agree that circumstances with respect to the General Motors Building Whole Loan, the 000 Xxxx 00xx Xxxxxx Whole Loan, the Loews Miami Beach Whole Loan or the Wellpoint Office Tower Whole Loan have changed such that a proposed future Delinquency Advance in respect of the General Motors Building Mortgage Loan, the 000 Xxxx 00xx Xxxxxx Mortgage Loan, the Loews Miami Beach Mortgage Loan or the Wellpoint Office Tower Mortgage Loan would not be a Nonrecoverable Delinquency Advance.; provided, however, that the determination of the COMM 2005-LP5 Master Servicer or GE 2005-C2 Master Servicer, as applicable, or a related Other Servicer with respect to the commercial mortgage securitizations that hold an General Motors Building Companion Loan, 000 Xxxx 00xx Xxxxxx Companion Loan, Loews Miami Beach Companion Loan or Wellpoint Office Tower Companion Loan shall not be binding on the Certificateholders in the event that such Other Master Servicer that made such determination is not approved as a master servicer by either of the Rating Agencies, and, in such event, the Master Servicer, the Trustee or the Fiscal Agent, as applicable, shall make its own determination of recoverability. Notwithstanding the foregoing, the Master Servicer shall continue to have the discretion provided in this Agreement to determine that any future Delinquency Advance or outstanding Delinquency Advance would be, or is, as applicable, a Nonrecoverable Delinquency Advance. Once such a determination is made by the Master Servicer or the Master Servicer receives written notice of such determination by any of the other master servicers, neither the Master Servicer nor the Trustee nor the Fiscal Agent shall make any additional Delinquency Advances with respect to the General Motors Building Mortgage Loan, the 000 Xxxx 00xx Xxxxxx 245
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (GMAC Commercial Mortgage Securities, Inc. Series 2005-C1 Trust), Pooling and Servicing Agreement (GMAC Commercial Mortgage Securities, Inc. Series 2005-C1 Trust)
Delinquency Advances. The (a) On each Delinquency Advance Date, the Master Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in into the Collection Certificate Account from its own funds an amount equal to such the aggregate amount of Delinquency AdvanceAdvances (including with respect to the Mesa Grande Loan A2), if any, to be made in respect of the related Distribution Date, (ii) cause to be made an appropriate entry apply amounts held in the records of the Custodial Certificate Account that funds in such account being held for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to Certificateholders in subsequent months in discharge of any such obligation to make such Delinquency Advance Advances, or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating the total amount of Delinquency Advances to be made; provided that, if Late Collections (net of related Workout Fees) of the delinquent Monthly Payments for which Delinquency Advances are to be made for the related Distribution Date, are on deposit in the Certificate Account and available to make such Delinquency AdvanceAdvances, the Master Servicer shall utilize such Late Collections to make such Advances pursuant to clause (ii) above. Any such funds being amounts held in the Custodial Certificate Account for future distribution and so used to make Delinquency Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer from its own funds by deposit in such Custodial the Certificate Account on or before the next succeeding Determination Date (to the extent required not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such Delinquency Advances were made). If, as of 3:00 p.m., New York City time, on or before any future Master Servicer Remittance Date in which such funds would be due. The Servicer Date, the Trustee shall be entitled to be reimbursed for all Delinquency Advances of its own funds made pursuant to this Section as provided in Section 3.8 hereof. Subject to and in accordance with the provisions of Article VII, in the event that the Servicer fails to remit a not have received any Delinquency Advance required to be made by the Master Servicer pursuant to this Section 3.19, 4.03(a) (and the Master Servicer shallshall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a Delinquency Advance), unless it determines that then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (000) 000-0000 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (000) 000-0000 (Attention: Master Servicing Manager) (or such alternative number provided by the Master Servicer to the Trustee in writing) as soon as possible, but in any event before 5:00 p.m., New York City time, on such day. If after such notice the Trustee does not receive the full amount of such Delinquency Advance would constitute a Nonrecoverable AdvanceAdvances by 11:00 a.m., itself makeNew York City time, on the Business Day immediately following such Master Servicer Remittance Date, then the Trustee shall make the portion of such Delinquency Advances that was required to be, but was not, made by the Master Servicer pursuant to this Section 4.03(a).
(b) The aggregate amount of Delinquency Advances to be made by the Master Servicer in respect of the Mortgage Loans (including, without limitation, Assumed Monthly Payments for Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Loans for any Distribution Date (including the Mesa Grande Loan A2 and any REO Loan related to the Mesa Grande Loan A2) shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Workout Fees payable hereunder, that were due or shall cause deemed due, as the successor Servicer case may be, in respect thereof on their respective Due Dates during the same month as such Distribution Date and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the later of the related Due Date or the Seller (as owner last day of the servicing rights with respect to related Collection Period. Notwithstanding the Mortgage Loansforegoing, (i) to make, such Delinquency Advance on or before the Distribution Date following the Servicer Remittance Date on which such Delinquency Advance should have been made. The obligation to make Delinquency Advances if an Appraisal Reduction Amount exists with respect to any Mortgage Loan shall continue (other than the Mesa Grande Loan A2) that is a Required Appraisal Loan or (ii) if such Mortgage Loan has been foreclosed or otherwise terminated and the related Mortgaged Property has not been liquidated. The Servicer shall deliver to the Master Servicer on has been notified by the 2002-C1 Master Servicer than an Appraisal Reduction Amount exists with respect to the Mesa Grande Loan A2 and that the Mesa Grande Loan A2 is a "Required Appraisal Loan" under the 2002-C1 Pooling Agreement, then, in the event of subsequent delinquencies thereon, the interest portion of the Delinquency Advance in respect of such Required Appraisal Loan or Mesa Grande Loan A2, as the case may be, for the related Servicer Remittance Distribution Date an Officer’s Certificate shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of a Servicing Officer indicating such Delinquency Advance) by the product of (i) the amount of the interest portion of such Delinquency Advance for such Required Appraisal Loan or the Mesa Grande Loan A2, as applicable, for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Loan or the Mesa Grande Loan A2, as applicable, immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Loan or the Mesa Grande Loan A2, as applicable, immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no Delinquency Advance shall be required to be made hereunder if such Delinquency Advance would, if made, constitute a Nonrecoverable Delinquency Advance. In addition, Nonrecoverable Delinquency Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Loans and REO Properties on deposit in the Certificate Account. The determination by the Master Servicer or, if applicable, the Trustee, that it has made a Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance thatAdvance, if made, would constitute a Nonrecoverable Delinquency Advance, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed Delinquency Advance to be made by the Master Servicer, no less than two Business Days prior to the related Delinquency Advance Date) by the Master Servicer to the Trustee (or, if applicable, retained thereby) and the Depositor, 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 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 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, the Special Servicer or the Trustee, as the case may be, may, subject to its reasonable and good faith judgment determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust Fund. The Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer or the Special Servicer with respect to a particular Delinquency Advance, and the Master Servicer shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a Nonrecoverable particular Delinquency Advance.
(d) 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 Delinquency Advance made thereby (out of its own funds) for so long as such Delinquency Advance is outstanding (or, if any Delinquency Advance is required to be made in respect of a Monthly Payment on any Mortgage Loan prior to its Due Date or the end of the grace period for such Monthly Payment, for so long as such Delinquency Advance is outstanding following the later of (i) such Due Date and (ii) the end of such grace period), payable first, out of Penalty Charges received on the Mortgage Loan or REO Loan as to which such Delinquency Advance was made and, then, once such Delinquency Advance has been reimbursed, out of general collections on the Mortgage Loans and REO Properties pursuant to Section 3.05(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Delinquency Advances. The (a) On or before 1:00 p.m., New York City time, on each Delinquency Advance Date, the Master Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in into the Collection Distribution Account (or, to the extent made to cover unpaid Master Servicing Fees and Special Servicing Fees, the Certificate Account) from its own funds an amount equal to such the aggregate amount of Delinquency AdvanceAdvances, if any, to be made in respect of the related Distribution Date, (ii) cause to be made an appropriate entry apply amounts held in the records of the Custodial Certificate Account that funds in such account being held for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to Certificateholders in subsequent months in discharge of any such obligation to make such Delinquency Advance Advances, or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating the total amount of Delinquency Advances to be made; provided that, if Late Collections (net of related Workout Fees) of the delinquent Monthly Payments for which Delinquency Advances are to be made for the related Distribution Date, are on deposit in the Certificate Account and available to make such Delinquency AdvanceAdvances, the Master Servicer shall utilize such Late Collections to make such Advances pursuant to clause (ii) above. Any such funds being amounts held in the Custodial Certificate Account for future distribution and so used to make Delinquency Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer from its own funds by deposit in such Custodial the Certificate Account on or before the next succeeding Determination Date (to the extent required on or before any future Servicer Remittance Date not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such funds would be dueDelinquency Advances were made). The If, as of 3:00 p.m., New York City time, on any Delinquency Advance Date, the Master Servicer shall be entitled to be reimbursed for all Delinquency Advances of its own funds not have made pursuant to this Section as provided in Section 3.8 hereof. Subject to and in accordance with the provisions of Article VII, in the event that the Servicer fails to remit a any Delinquency Advance required to be made on such date pursuant to this Section 3.194.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a Delinquency Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer shallby facsimile transmission sent to telecopy no. (000) 000-0000 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (000) 000-0000 (or such alternative number provided by the Master Servicer to the Trustee in writing) as soon as possible, unless it determines that but in any event before 5:00 p.m., New York City time, on such day. If after such notice the Trustee does not receive the full amount of such Delinquency Advances by 11:00 a.m., New York City time, on the Business Day immediately following such Delinquency Advance would constitute a Nonrecoverable AdvanceDate, itself makethen the Trustee shall make the portion of such Delinquency Advances that was required to be, or shall cause but was not, made by the successor Master Servicer or the Seller (as owner of the servicing rights with respect to the Mortgage Loans) to make, on such Delinquency Advance on or before Date.
(b) The aggregate amount of Delinquency Advances to be made by the Master Servicer in respect of the Mortgage Loans (including, without limitation, Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Loans for any Distribution Date following shall equal, subject to subsection (c) below, the Servicer Remittance Date aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Workout Fees payable hereunder, that were due or deemed due, as the case may be, in respect thereof on which such Delinquency Advance should have been made. The obligation to make Delinquency Advances their respective Due Dates during the related Collection Period and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the last day of the related Collection Period; provided that, if an Appraisal Reduction Amount exists with respect to any Mortgage Required Appraisal Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the Delinquency Advance in respect of such Required Appraisal Loan for the related Distribution Date shall continue be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such Delinquency Advance) to equal the product of (i) the amount of the interest portion of such Delinquency Advance for such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no Delinquency Advance shall be required to be made hereunder if such Delinquency Advance would, if made, constitute a Nonrecoverable Delinquency Advance. In addition, Nonrecoverable Delinquency Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Loan has been foreclosed or otherwise terminated Loans and REO Properties on deposit in the related Mortgaged Property has not been liquidatedCertificate Account. The Servicer shall deliver to determination by the Master Servicer on or, if applicable, the related Servicer Remittance Date an Officer’s Certificate of Trustee, that it has made a Servicing Officer indicating the amount of Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance thatAdvance, if made, would constitute a Nonrecoverable Delinquency Advance, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed Delinquency Advance, no less than five Business Days prior to the related Delinquency Advance Date) to the Trustee (or, if applicable, retained thereby) and the Depositor, 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 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 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 judgment determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust Fund. The Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer or the Special Servicer with respect to a particular Delinquency Advance, and the Master Servicer shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a Nonrecoverable particular Delinquency Advance.
(d) 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 Delinquency Advance made thereby (out of its own funds) for so long as such Delinquency Advance is outstanding (or, if any Delinquency Advance is required to be made in respect of a delinquent Monthly Payment on any Mortgage Loan prior to the end of the grace period for such Monthly Payment, for so long as such Delinquency Advance is outstanding following the end of such grace period), payable FIRST, out of Penalty Charges received on the Mortgage Loan or REO Loan as to which such Delinquency Advance was made and, THEN, once such Delinquency Advance has been reimbursed, out of general collections on the Mortgage Loans and REO Properties.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Delinquency Advances. The (a) On each Delinquency Advance Date, the Master Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in into the Collection Certificate Account from its own funds an amount equal to such the aggregate amount of Delinquency AdvanceAdvances, if any, to be made in respect of the related Distribution Date, (ii) cause to be made an appropriate entry apply amounts held in the records of the Custodial Certificate Account that funds in such account being held for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to Certificateholders in subsequent months in discharge of any such obligation to make such Delinquency Advance Advances, or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating the total amount of Delinquency Advances to be made; provided that, if Late Collections (net of related Workout Fees) of the delinquent Monthly Payments for which Delinquency Advances are to be made for the related Distribution Date, are on deposit in the Certificate Account and available to make such Delinquency AdvanceAdvances, the Master Servicer shall utilize such Late Collections to make such Advances pursuant to clause (ii) above. Any such funds being amounts held in the Custodial Certificate Account for future distribution and so used to make Delinquency Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer from its own funds by deposit in such Custodial the Certificate Account on or before the next succeeding Determination Date (to the extent required not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such Delinquency Advances were made). If, as of 3:00 p.m., New York City time, on or before any future Master Servicer Remittance Date in which such funds would be due. The Servicer Date, the Trustee shall be entitled to be reimbursed for all Delinquency Advances of its own funds made pursuant to this Section as provided in Section 3.8 hereof. Subject to and in accordance with the provisions of Article VII, in the event that the Servicer fails to remit a not have received any Delinquency Advance required to be made by the Master Servicer pursuant to this Section 3.19, 4.03(a) (and the Master Servicer shallshall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a Delinquency Advance), unless it determines that then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (312) 845-8617 (or such alternative number provided by the Master Xxxxxxxx xx xhe Trustee in writing) and by telephone at telephone no. (312) 845-8500 (Attention: Master Servicing Manager) (or such alxxxxxxxxx xxxxer provided by the Master Servicer to the Trustee in writing) as soon as possible, but in any event before 5:00 p.m., New York City time, on such day. If after such notice the Trustee does not receive the full amount of such Delinquency Advance would constitute a Nonrecoverable AdvanceAdvances by 11:00 a.m., itself makeNew York City time, or on the Business Day immediately following such Master Servicer Remittance Date, then the Trustee shall cause make the successor portion of such Delinquency Advances that was required to be, but was not, made by the Master Servicer or pursuant to this Section 4.03(a).
(b) The aggregate amount of Delinquency Advances to be made by the Seller (as owner Master Servicer in respect of the servicing rights with respect Mortgage Loans (including, without limitation, Balloon Mortgage Loans delinquent as to the Mortgage Loanstheir respective Balloon Payments) to make, such Delinquency Advance on or before the and any REO Loans for any Distribution Date following shall equal, subject to subsection (c) below, the Servicer Remittance Date aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Workout Fees payable hereunder, that were due or deemed due, as the case may be, in respect thereof on which such Delinquency Advance should have been made. The obligation to make Delinquency Advances their respective Due Dates during the related Collection Period and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the last day of the related Collection Period; provided that, if an Appraisal Reduction Amount exists with respect to any Mortgage Required Appraisal Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the Delinquency Advance in respect of such Required Appraisal Loan for the related Distribution Date shall continue be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such Delinquency Advance) to equal the product of (i) the amount of the interest portion of such Delinquency Advance for such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no Delinquency Advance shall be required to be made hereunder if such Delinquency Advance would, if made, constitute a Nonrecoverable Delinquency Advance. In addition, Nonrecoverable Delinquency Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Loan has been foreclosed or otherwise terminated Loans and REO Properties on deposit in the related Mortgaged Property has not been liquidatedCertificate Account. The Servicer shall deliver to determination by the Master Servicer on or, if applicable, the related Servicer Remittance Date an Officer’s Certificate of Trustee, that it has made a Servicing Officer indicating the amount of Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance thatAdvance, if made, would constitute a Nonrecoverable Delinquency Advance, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed Delinquency Advance, no less than two Business Days prior to the related Delinquency Advance Date) by the Master Servicer to the Trustee (or, if applicable, retained thereby) and the Depositor, 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 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 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, the Special Servicer or the Trustee, as the case may be, may, subject to its reasonable and good faith judgment determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust Fund. The Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer or the Special Servicer with respect to a particular Delinquency Advance, and the Master Servicer shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a Nonrecoverable particular Delinquency Advance.
(d) 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 Delinquency Advance made thereby (out of its own funds) for so long as such Delinquency Advance is outstanding (or, if any Delinquency Advance is required to be made in respect of a delinquent Monthly Payment on any Mortgage Loan prior to the end of the grace period for such Monthly Payment, for so long as such Delinquency Advance is outstanding following the end of such grace period), payable first, out of Penalty Charges received on the Mortgage Loan or REO Loan as to which such Delinquency Advance was made and, then, once such Delinquency Advance has been reimbursed, out of general collections on the Mortgage Loans and REO Properties.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Delinquency Advances. The (a) On each Delinquency Advance Date, the Master Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in into the Collection Certificate Account from its own funds an amount equal to such the aggregate amount of Delinquency AdvanceAdvances, if any, to be made in respect of the related Distribution Date, (ii) cause to be made an appropriate entry apply amounts held in the records of the Custodial Certificate Account that funds in such account being held for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to Certificateholders in subsequent months in discharge of any such obligation to make such Delinquency Advance Advances, or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating the total amount of Delinquency Advances to be made; provided that, if Late Collections (net of related Workout Fees) of the delinquent Monthly Payments for which Delinquency Advances are to be made for the related Distribution Date, are on deposit in the Certificate Account and available to make such Delinquency AdvanceAdvances, the Master Servicer shall utilize such Late Collections to make such Advances pursuant to clause (ii) above. Any such funds being amounts held in the Custodial Certificate Account for future distribution and so used to make Delinquency Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer from its own funds by deposit in such Custodial the Certificate Account on or before the next succeeding Determination Date (to the extent required not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such Delinquency Advances were made). If, as of 3:00 p.m., New York City time, on or before any future Master Servicer Remittance Date in which such funds would be due. The Servicer Date, the Trustee shall be entitled not have received any Delinquency Advance required to be reimbursed for all Delinquency Advances of its own funds made by the Master Servicer pursuant to this Section 4.03(a) (and the Master Servicer shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a Delinquency Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no.(312) 499-5406 (or such alternative number provided by the Mastxx Xxxxxxxx to the Trustee in writing) and by telephone at telephone no. (312) 499- 5485 (Attention: Master Servicing Manager) (or such alternaxxxx xxxber provided by the Master Servicer to the Trustee in writing) as provided soon as possible, but in any event before 5:00 p.m., New York City time, on such day. If after such notice the Trustee does not receive the full amount of such Delinquency Advances by 11:00 a.m., New York City time, on the Business Day immediately following such Master Servicer Remittance Date, then the Trustee shall make the portion of such Delinquency Advances that was required to be, but was not, made by the Master Servicer pursuant to this Section 3.8 hereof4.03(a). Subject to and in accordance with If the provisions of Article VII, in the event that the Servicer Trustee fails to remit make a Delinquency Advance required to be made pursuant by it hereunder, the Fiscal Agent shall make such advance no later than 1:00 p.m. New York City time on the Business Day immediately following such Master Servicer Remittance Date. The making of such Advance by the Fiscal Agent shall cure the failure by the Trustee to this Section 3.19, make such Advance.
(b) The aggregate amount of Delinquency Advances to be made by the Master Servicer shallin respect of the Mortgage Loans (including, unless it determines without limitation, Assumed Monthly Payments for Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Loans for any Distribution Date shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Workout Fees payable hereunder, that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the same month as such Delinquency Advance would constitute a Nonrecoverable Advance, itself make, Distribution Date and that were not paid by or shall cause on behalf of the successor Servicer related Mortgagors or otherwise collected as of the 133 close of business on the later of the related Due Date or the Seller (as owner last day of the servicing rights with respect to the Mortgage Loans) to makerelated Collection Period; provided that, such Delinquency Advance on or before the Distribution Date following the Servicer Remittance Date on which such Delinquency Advance should have been made. The obligation to make Delinquency Advances if an Appraisal Reduction Amount exists with respect to any Mortgage Required Appraisal Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the Delinquency Advance in respect of such Required Appraisal Loan for the related Distribution Date shall continue be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such Delinquency Advance) to equal the product of (i) the amount of the interest portion of such Delinquency Advance for such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no Delinquency Advance shall be required to be made hereunder if such Delinquency Advance would, if made, constitute a Nonrecoverable Delinquency Advance. In addition, Nonrecoverable Delinquency Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Loan has been foreclosed or otherwise terminated Loans and REO Properties on deposit in the related Mortgaged Property has not been liquidatedCertificate Account. The Servicer shall deliver to determination by the Master Servicer on or, if applicable, the related Servicer Remittance Date an Officer’s Certificate of Trustee or the Fiscal Agent, that it has made a Servicing Officer indicating the amount of Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance thatAdvance, if made, would constitute a Nonrecoverable Delinquency Advance, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed Delinquency Advance to be made by the Master Servicer, no less than two Business Days prior to the related Delinquency Advance Date) by the Master Servicer to the Trustee (or, if applicable, retained thereby) and the Depositor, 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 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 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, the Special Servicer, the Trustee or the Fiscal Agent, as the case may be, may, subject to its reasonable and good faith judgment determination that such Appraisal will demonstrate the nonrecoverability of the related 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 respect to a particular Delinquency Advance, and the Master Servicer shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a Nonrecoverable particular Delinquency Advance.
(d) The Master Servicer, the Trustee and the 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 Delinquency Advance made thereby (out of its own funds) for so long as such Delinquency Advance is outstanding (or, if any Delinquency Advance is required to be made in respect of a delinquent Monthly Payment on any Mortgage Loan prior to the end of the grace period for such 134 Monthly Payment, for so long as such Delinquency Advance is outstanding following the end of such grace period), payable first, out of Penalty Charges received on the Mortgage Loan or REO Loan as to which such Delinquency Advance was made and, then, once such Delinquency Advance has been reimbursed, out of general collections on the Mortgage Loans and REO Properties pursuant to Section 3.05(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Delinquency Advances. The (a) On each Delinquency Advance Date, the Master Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in into the Collection Distribution Account from its own funds an amount equal to such the aggregate amount of Delinquency AdvanceAdvances with respect to the Mortgage Loans (including, without limitation, the Non-Serviced Mortgage Loans), if any, to be made in respect of the related Distribution Date, (ii) cause to be made an appropriate entry apply amounts held in the records of Certificate Account or, with respect to the Mortgage Loans related to the Serviced Whole Loan, the related Serviced Whole Loan Custodial Account that funds in allocable to such account being held Mortgage Loans, for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to Certificateholders in subsequent months in discharge of any such obligation to make such Delinquency Advance Advances, or (iii) make Delinquency Advances in the form of any combination of amounts specified in clauses (i) and (ii) aggregating the total amount of Delinquency Advances to be made; provided, that if Late Collections (net of related Workout Fees) of the delinquent Monthly Payments for which Delinquency Advances are to be made for the related Distribution Date, are on deposit in the Certificate Account or, if applicable, the amount allocable to a Mortgage Loan in the related Serviced Whole Loan Custodial Account, and available to make such Delinquency AdvanceAdvances, the Master Servicer shall utilize such Late Collections to make such Advances pursuant to clause (ii) above. Any such funds being amounts held in the Certificate Account, or with respect to the Serviced Whole Loan, the related Serviced Whole Loan Custodial Account Account, for future distribution and so used to make Delinquency Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer from its own funds by deposit in such the Certificate Account or the related Serviced Whole Loan Custodial Account on or before the next succeeding Determination Date (to the extent required not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such Delinquency Advances were made). If, as of 3:00 p.m. (New York City time) on or before any future Master Servicer Remittance Date in which such funds would be due. The Servicer Date, the Trustee shall be entitled to be reimbursed for all Delinquency Advances of its own funds made pursuant to this Section as provided in Section 3.8 hereof. Subject to and in accordance with the provisions of Article VII, in the event that the Servicer fails to remit a not have received any Delinquency Advance required to be made by the Master Servicer pursuant to this Section 3.194.03(a) (and the Master Servicer shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a Delinquency Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to facsimile no. (215) 328-3478 (or such alternative number provided by the Master Sxxxxxxx xx xxx Trustee in writing) and by telephone at telephone no. (215) 328-1258 (Attention: Master Servicing Manager) (or such alterxxxxxx xxxxxx provided by the Master Servicer to the Trustee in writing) as soon as possible, but in any event before 5:00 p.m. (New York City time) on such day. If after such notice the Trustee does not receive the full amount of such Delinquency Advances by 11:00 a.m. (New York City time) on the Business Day immediately following such Master Servicer Remittance Date, then the Trustee shall make the portion of such Delinquency Advances that was required to be, but was not, made by the Master Servicer pursuant to this Section 4.03(a). No Delinquency Advances shall be made by the Master Servicer or the Trustee with respect to any Serviced Companion Loans or any other companion loans or subordinate notes. 219 With respect to Delinquency Advances relating to the Strategic Hotel Portfolio Mortgage Loan and the Houston Center Mortgage Loan, the Master Servicer shallshall comply with the notice provisions (relating to the Strategic Hotel Portfolio Mortgage Loan and the Houston Center Mortgage Loan, unless it determines that such Delinquency Advance would constitute a Nonrecoverable Advance, itself make, or shall cause the successor Servicer or the Seller (as owner applicable) set forth in Section 3.6 of the servicing rights Strategic Hotel Portfolio A Notes Intercreditor Agreement and Section 3.5.3 of the Houston Center Intercreditor Agreement.
(b) The aggregate amount of Delinquency Advances to be made by the Master Servicer and, if applicable, the Trustee in respect of the Mortgage Loans (including, without limitation, Assumed Monthly Payments for Balloon Mortgage Loans (other than any Serviced Companion Loan) delinquent as to their respective Balloon Payments) and any REO Loans for any Distribution Date (including the Non-Serviced Mortgage Loans and any REO Loan related thereto) shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Workout Fees payable hereunder (and, with respect to the Non-Serviced Mortgage Loans) to make, net of all workout fees payable under the GE 2004-C3 Pooling and Servicing Agreement), that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the same month as such Delinquency Advance on or before the Distribution Date following and that were not paid by or on behalf of the Servicer Remittance related Mortgagors or otherwise collected as of the close of business on the later of the related Due Date on which such Delinquency Advance should have been madeor the last day of the related Collection Period. The obligation to make Delinquency Advances Notwithstanding the foregoing, if (i) an Appraisal Reduction Amount exists with respect to any Mortgage Loan shall continue (other than the Non-Serviced Mortgage Loans) that is a Required Appraisal Loan, or (ii) if such Mortgage Loan has been foreclosed or otherwise terminated and the related Mortgaged Property has not been liquidated. The Servicer shall deliver to the Master Servicer on has been notified by the GE 2004-C3 Master Servicer that an Appraisal Reduction Amount exists with respect to the Strategic Hotel Portfolio Mortgage Loan and that the Strategic Hotel Portfolio Mortgage Loan is a loan subject to an "Appraisal Reduction Amount" under the GE 2004-C3 Pooling and Servicing Agreement, then, in the event of subsequent delinquencies thereon, the interest portion of the Delinquency Advance in respect of such Required Appraisal Loan or Non-Serviced Mortgage Loan, as the case may be, for the related Servicer Remittance Distribution Date an Officer’s Certificate shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of a Servicing Officer indicating such Delinquency Advance) by the product of (a) the amount of the interest portion of such Delinquency Advance for such Required Appraisal Loan or Non-Serviced Mortgage Loan, as applicable, for such Distribution Date without regard to this sentence, multiplied by (b) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Loan or Non-Serviced Mortgage Loan, as applicable, immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Loan or Non-Serviced Mortgage Loan, as applicable, immediately prior to such Distribution Date. Notwithstanding anything herein to the contrary, no Delinquency Advance shall be required to be made hereunder if such Delinquency Advance would, if made, constitute a Nonrecoverable Delinquency Advance. In addition, any Person, in considering whether (i) any Delinquency Advance is or (ii) any proposed Delinquency Advance thatAdvance, if made, would constitute, a Nonrecoverable Delinquency Advance, will be entitled to give due regard to the existence of any Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts with respect to other Mortgage Loans, the recovery of which is being deferred or delayed at the time of such consideration by the Master Servicer or, if applicable, the Trustee, in light of the fact that proceeds on the related Mortgage Loan are a source of recovery not only for the Delinquency 220 Advance under consideration, but also as a potential source of recovery of such Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts which are or may be being deferred or delayed. With respect to the Strategic Hotel Portfolio Mortgage Loan, the Master Servicer shall make its determination that it has made a Delinquency Advance on such Mortgage Loan that is a Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance, if made, would constitute a Nonrecoverable Delinquency Advance with respect to such Mortgage Loan in accordance with this Section 4.03(b) independently of any determination made by the GE 2004-C3 Master Servicer (or any master servicer with respect to a commercial mortgage securitization holding another Strategic Hotel Portfolio Companion Loan) under the GE 2004-C3 Pooling and Servicing Agreement (or any related Other Pooling and Servicing Agreement with respect to a Strategic Hotel Portfolio Companion Loan) in respect of the Strategic Hotel Portfolio Companion Loan. If the Master Servicer determines that a proposed Delinquency Advance with respect to the Strategic Hotel Portfolio Mortgage Loan, if made, or any outstanding Delinquency Advance with respect to the Strategic Hotel Portfolio Mortgage Loan previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide the GE 2004-C3 Servicer (and any master servicer with respect to a commercial mortgage securitization holding a Strategic Hotel Portfolio Companion Loan) written notice of such determination within one Business Day of the date of such determination (except to the extent that the Master Servicer is also a master servicer with respect to any Strategic Hotel Portfolio Companion Loan). If the Master Servicer receives written notice from the GE 2004-C3 Servicer (or any master servicer with respect to a commercial mortgage securitization holding a Strategic Hotel Portfolio Companion Loan) that it has determined, with respect to the Strategic Hotel Portfolio Companion Loan, that any proposed advance of principal and/or interest with respect to the related Strategic Hotel Portfolio Companion Loan would be, or any outstanding advance of principal and interest is, a nonrecoverable advance of principal and/or interest, then such determination shall be binding on the Certificateholders and none of the Master Servicer or the Trustee shall make any additional Delinquency Advances with respect to the Strategic Hotel Portfolio Mortgage Loan unless the Master Servicer has consulted with the other related master servicers and they agree that circumstances with respect to the Strategic Hotel Portfolio Whole Loan have changed such that a proposed future Delinquency Advance in respect of the Strategic Hotel Portfolio Mortgage Loan would not be a Nonrecoverable Delinquency Advance; provided, however, that the determination of the GE 2004-C3 Master Servicer or a related Other Servicer with respect to the commercial mortgage securitizations that hold an Strategic Hotel Portfolio Companion Loan shall not be binding on the Certificateholders in the good faith judgment event that such Other Master Servicer that made such determination is not approved as a master servicer by either of the Rating Agencies, and, in such event, the Master Servicer or the Trustee, as applicable, shall make its own determination of recoverability. Notwithstanding the foregoing, the Master Servicer shall continue to have the discretion provided in this Agreement to determine that any future Delinquency Advance or outstanding Delinquency Advance would be, or is, as applicable, a Nonrecoverable Delinquency Advance. Once such a determination is made by the Master Servicer or the Master Servicer receives written notice of such determination by any of the other master servicers, neither the Master Servicer nor the Trustee shall make any additional Delinquency Advances with respect to the Strategic Hotel Portfolio Mortgage Loan until the Master Servicer has followed the process set forth in this paragraph. 221 With respect to the Houston Center Whole Loan, if any of the Master Servicer or, if the Houston Center Companion Loan has been deposited into a securitization trust, the Other Servicer, determines that a proposed Delinquency Advance, if made, or any outstanding Delinquency Advance previously made, would be, or is, as applicable, a Nonrecoverable Advance, such servicer shall provide the other servicer written notice of such determination within two Business Days after such determination was made. Once notice of such determination has been delivered by the Master Servicer or the Master Servicer receives written notice of such determination from the Other Servicer, none of the Master Servicer or the Trustee, the Other Servicer or any other party to the Other Pooling and Servicing Agreement shall make any further Delinquency Advances with respect to the Houston Center Mortgage Loan or the Houston Center Companion Loan, as applicable, until the Master Servicer has consulted with the Other Servicer and they agree that circumstances with respect to the Houston Center Whole Loan have changed such that a proposed future Delinquency Advance would not be a Nonrecoverable Advance.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Delinquency Advances. The (a) On each Delinquency Advance Date, the Master Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in into the Collection Distribution Account from its own funds an amount equal to such the aggregate amount of Delinquency AdvanceAdvances with respect to the Mortgage Loans (including, without limitation, the John Hancock Tower Mortgage Loan and the Boulevard Mall Mortgagx Xoxx), xf any, to be made in respect of the related Distribution Date, (ii) cause to be made an appropriate entry apply amounts held in the records of Certificate Account or, with respect to the Mortgage Loans related to the Serviced Whole Loans, the related Serviced Whole Loan Custodial Account that funds in allocable to such account being held Mortgage Loans, for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to Certificateholders in subsequent months in discharge of any such obligation to make such Delinquency Advance Advances, or (iii) make Delinquency Advances in the form of any combination of amounts specified in clauses (i) and (ii) aggregating the total amount of Delinquency Advances to be made; provided, that if Late Collections (net of related Workout Fees) of the delinquent Monthly Payments for which Delinquency Advances are to be made for the related Distribution Date, are on deposit in the Certificate Account or, if applicable, the amount allocable to a Mortgage Loan in the related Serviced Whole Loan Custodial Account, and available to make such Delinquency AdvanceAdvances, the Master Servicer shall utilize such Late Collections to make such Advances pursuant to clause (ii) above. Any such funds being amounts held in the Certificate Account, or with respect to the Serviced Whole Loan, the related Serviced Whole Loan Custodial Account Account, for future distribution and so used to make Delinquency Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer from its own funds by deposit in such the Certificate Account or the related Serviced Whole Loan Custodial Account on or before the next succeeding Determination Date (to the extent required not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such Delinquency Advances were made). If, as of 3:00 p.m. (New York City time) on or before any future Master Servicer Remittance Date, the Trustee shall not have received any Delinquency Advance required to be made by the Master Servicer pursuant to this Section 4.03(a) (and the Master Servicer shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a Delinquency Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (215) 328-3478 (or such alternative number provided by the Mastxx Xxxxxxxx to the Trustee in writing) and by telephone at telephone no. (215) 328-1258 (Attention: Master Servicing Manager) (or such alxxxxxxxxx xxxber provided by the Master Servicer to the Trustee in writing) as soon as possible, but in any event before 5:00 p.m. (New York City time) on such day. If after such notice the Trustee does not receive the full amount of such Delinquency Advances by 11:00 a.m. (New York City time) on the Business Day immediately following such Master Servicer Remittance Date, then the Trustee shall make the portion of such Delinquency Advances that was required to be, but was not, made by the Master 192 Servicer pursuant to this Section 4.03(a). No Delinquency Advances shall be made by the Master Servicer or the Trustee with respect to any Serviced Companion Loans or any other Companion Loans or B Notes. With respect to Delinquency Advances relating to the John Hancock Tower Mortgage Loan and the Boulevard Mall Mortgagx Xxax xxx Xaster Servicer shall comply with the notice provisions (relating to the John Hancock Tower Mortgage Loan and the Boulevard Mall Mortgage Xxxx, xx xxxlicable) set forth in Section 4.03 of the John Hancock Tower Co-Lender Agreement and Section 3.6 of txx Xouxxxxxx Mall Intercreditor Agreement, as applicable.
(b) The aggregate amount of Delinquency Advances to be made by the Master Servicer in respect of the Mortgage Loans (including, without limitation, Assumed Monthly Payments for Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Loans for any Distribution Date (including the John Hancock Tower Mortgage Loan, the Boulevard Mall Mortgage Lxxx axx xxx REO Loan related thereto) shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Workout Fees payable hereunder (and, with respect to the John Hancock Tower Mortgage Loan and the Boulevard Mall Mortgagx Xoxx, xxx of all workout fees payable under the LB-UBS 2003-C5 Pooling and Servicing Agreement or the GE 2003-C2 Pooling and Servicing Agreement, as applicable), that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the same month as such Distribution Date and (i) that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the later of the related Due Date or the last day of the related Collection Period and (ii) with respect to the John Hancock Tower Mortgage Loan, that were not received by the Xxxxex Xxxxicer by the close of business on the related Due Date. Notwithstanding the foregoing, if (i) an Appraisal Reduction Amount exists with respect to any Mortgage Loan (other than the John Hancock Tower Mortgage Loan and the Boulevard Mall Mortgage Xxxn) xxxx is a Required Appraisal Loan, (ii) the Master Servicer has been notified by the LB-UBS 2003-C5 Master Servicer that an Appraisal Reduction Amount exists with respect to the John Hancock Tower Mortgage Loan and that the John Hancock Towxx Mxxxxxxx Loan is a "Required Appraisal Loxx" unxxx xxx LB-UBS 2003-C5 Pooling and Servicing Agreement or (iii) the Master Servicer has been notified by the GE 2003-C2 Master Servicer than an Appraisal Reduction Amount exists with respect to the Boulevard Mall Mortgage Loan and that the Boulevard Mall Mortgage Loan is a "Required Appraisal Loan" under the GE 2003-C2 Pooling and Servicing Agreement, then, in the event of subsequent delinquencies thereon, the interest portion of the Delinquency Advance in respect of such Required Appraisal Loan, John Hancock Tower Mortgage Loan or Boulevard Mall Mortgage Loxx, xx xxx case may be, for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such Delinquency Advance) by the product of (i) the amount of the interest portion of such Delinquency Advance for such Required Appraisal Loan, the John Hancock Tower Mortgage Loan or the Boulevard Mall Mortgage Loxx, ax xxxxxcable, for such Distribution Date without regard to this sentence, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such funds would Required Appraisal Loan, the John Hancock Tower Mortgage Loan or the Boulevard Mall Mortgaxx Lxxx, xs applicable, immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Loan, the John Hancock Tower Xxxxgage Loan or the Boulevard Mall Mortgage Loan, xx xxxxicable, immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no Delinquency Advance shall be duerequired to be made hereunder if such Delinquency Advance would, if made, constitute a Nonrecoverable Delinquency Advance. The Servicer Master Servicer, or the Trustee, as applicable, shall be entitled to be reimbursed for all rely conclusively on any determination by (i) the LB-UBS 2003-C5 Master Servicer, the 2003-TOP11 Master Servicer, the LB-UBS 2003-C5 Trustee or the 2003-TOP11 Trustee that any Delinquency Advances of its own funds made pursuant Advance with respect to this Section as provided in Section 3.8 hereofthe John Hancock Tower Mortgage Loan would, if made, constitute a Nonrxxxxexxxxx Xelinquency Advance and (ii) the GE 2003-C2 Master Servicer or the GE 2003-C2 Trustee that any Delinquency Advance with respect to the Boulevard Mall Mortgage Loan would, if made, constitute a Nonrecoverable Delinquency Advance. Subject to and in accordance with Notwithstanding the provisions of Article VIIforegoing, in the event that the Master Servicer fails to remit a Delinquency Advance required to be made pursuant to this Section 3.19has received written notice that any of the LB-UBS 2003-C5 Master Servicer, the 2003-TOP11 Master Servicer or the GE 2003-C2 Master Servicer is no longer an "approved" servicer by Fitch and Standard & Poor's, the Master Servicer shall, unless it determines that shall not be entitled to rely on any determination of nonrecoverability made by such party as described in the preceding sentence. Nonrecoverable Delinquency Advance would constitute a Nonrecoverable Advance, itself make, or Advances shall cause the successor Servicer or the Seller (as owner be reimbursable pursuant to Section 3.05(a) out of the servicing rights with respect to general collections on the Mortgage Loans) to make, such Delinquency Advance Loans and REO Properties on or before deposit in the Distribution Date following the Servicer Remittance Date on which such Delinquency Advance should have been madeCertificate Account. The obligation to make Delinquency Advances with respect to any Mortgage Loan shall continue if such Mortgage Loan has been foreclosed or otherwise terminated and the related Mortgaged Property has not been liquidated. The Servicer shall deliver to determination by the Master Servicer on or, if applicable, the related Servicer Remittance Date an Officer’s Certificate of Trustee, that it has made a Servicing Officer indicating the amount of Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance thatAdvance, if made, would constitute a Nonrecoverable Delinquency Advance, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed Delinquency Advance to be made by the Master Servicer, no less than two Business Days prior to the related Delinquency Advance Date) by the Master Servicer to the Trustee (or, if applicable, retained thereby) and the Depositor, setting forth the basis for such determination, together with (i) in the case of the John Hancock Tower Mortgage Loan or the Boulevard Mall Mortgage Lxxx, x xxxx of the nonrecoverability determination of the LB-UBS 2003-C5 Master Servicer, the 2003-TOP11 Master Servicer, the LB-UBS 20032-C5 Trustee, the GE 2003-C2 Master Servicer or the GE 2003-C2 Trustee, as applicable, or (ii) otherwise (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 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 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, the Special Servicer or the Trustee, as the case may be, may, subject to its reasonable and good faith judgment determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust Fund. The Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer or the Special Servicer with respect to a particular Delinquency Advance, and the Master Servicer shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a particular Delinquency Advance. With respect to the Mortgage Loans related to the Serviced Whole Loans, the Master Servicer shall make its determination that it has made a Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance, if made, would constitute a Nonrecoverable Delinquency Advance in accordance with this Section 4.03(c) and independently of any determination made by any servicer of any related Serviced Companion Loan pursuant to a Serviced Companion Loan Securitization Agreement. With respect to the Mortgage Loans related to the Serviced Whole Loans, the Master Servicer shall make its determination that it has made a Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance, if made, would constitute a Nonrecoverable Delinquency Advance no later than the earlier of (i) the Delinquency Advance Date and (ii) the delinquency advance date for any related Serviced Companion Loan pursuant to the applicable Serviced Companion Loan Securitization Agreement. The Master Servicer, or the Trustee, as applicable, shall be entitled to rely conclusively on any determination by any servicer of a Serviced Companion Loan that has determined that, with respect to such Serviced Companion Loan, any principal and interest advance with respect to such Serviced Companion Loan would, if made, constitute a nonrecoverable advance. Notwithstanding the foregoing, in the event that the Master Servicer has received written notice that the master servicer of the securitization relating to the any related Serviced Companion Loan is no longer an "approved" servicer by Fitch and Standard & Poor's, the Master Servicer shall not be entitled to rely on any determination of nonrecoverability made by such master servicer as described in the preceding sentence.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Delinquency Advances. The Servicer On any Deposit Date, the Trustee (in its individual capacity and not as Trustee) shall determine deposit funds equal to the Delinquent Amount for the related Determination Date into the Certificate Account; provided that the Trustee (in such individual capacity) shall be obligated to make such deposit only to the extent of funds determined by it (in its sole discretion) to be recoverable from future Remittances, Net Recoveries and other proceeds or collections on or before in respect of the Mortgage Loans, provided, however, the Trustee may only recover funds for Delinquent Amounts relating to Third Party Mortgage Loans or Affiliated Mortgage Loans from Remittances, Net Recoveries and other proceeds relating to Third Party Mortgage Loans or Affiliated Mortgage Loans, respectively. CMSI shall pay to the Trustee a servicing administration fee of $100 in respect of each Determination Deposit Date whether it is required to make on which the Trustee (in such individual capacity) makes such a Delinquency Advancedeposit, promptly after CMSI receives notice thereof from the Trustee. The Servicer CMSI shall advance funds in also reimburse the Trustee for the amount of any Scheduled Payment that was due during such deposit on the related Collection Period and not received by Business Day CMSI receives notice from the Servicer as Trustee of the related Determination Date; amount thereof, provided that if such notice is received after 1:00 p.m., New York City time, on a Business Day, such reimbursement shall be made to the Trustee on the next following Business Day, not later than 1:00 p.m. To the extent the Trustee receives an amount on or in no event shall respect of the Servicer be required Third Party Mortgage Loans or Affiliated Mortgage Loans, respectively, identified to make it as being in respect of any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunderdeposit, the Servicer Trustee shall on or before the Servicer Remittance Date either (i) deposit in the Collection Account from its own funds an amount equal repay to such Delinquency Advance, (ii) cause to be made an appropriate entry in the records of the Custodial Account that funds in such account being held for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to make such Delinquency Advance or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating CMSI the amount of such Delinquency Advancereimbursement not later than the Business Day after the Trustee receives the same. Any such funds being held Promptly after the Trust Fund is terminated pursuant to Article IX hereof, CMSI shall notify the Trustee in writing of the Custodial Account for amount of Third Party Trustee Advances and Affiliated Trustee Advances that were not recovered from future distribution and so used shall be replaced by Remittances, Net Recoveries or other proceeds or collections on or in respect of the Servicer from its own funds by deposit Third Party Mortgage Loans or Affiliated Mortgage Loans, respectively. The Trustee (in such Custodial Account individual capacity) shall reimburse CMSI for the amount of Third Party Trustee Advances or Affiliated Trustee Advances not so recovered and repaid to CMSI on the next Business Day after its receipt of notice thereof. CMSI shall furnish to the extent required on or before any future Servicer Remittance Date in which Trustee such funds would be due. The Servicer shall be entitled to be reimbursed for all Delinquency Advances of its own funds made pursuant to this Section as provided in Section 3.8 hereof. Subject to and in accordance with the provisions of Article VII, in the event that the Servicer fails to remit a Delinquency Advance required to be made pursuant to this Section 3.19, the Master Servicer shall, unless it determines that such Delinquency Advance would constitute a Nonrecoverable Advance, itself make, or shall cause the successor Servicer or the Seller (as owner of the servicing rights information within CMSI's possession with respect to the Mortgage Loans) to makeLoans as the Trustee may require, such Delinquency Advance on or before the Distribution Date following the Servicer Remittance Date on which such Delinquency Advance should have been made. The obligation in order to make Delinquency Advances with respect to a determination that any Mortgage Loan shall continue if such Mortgage Loan has been foreclosed or otherwise terminated and advance made by the related Mortgaged Property has not been liquidated. The Servicer shall deliver to the Master Servicer on the related Servicer Remittance Date an Officer’s Certificate of a Servicing Officer indicating the amount of any proposed Delinquency Advance that, if made, would in the good faith judgment of the Servicer Trustee will be a Nonrecoverable Advancerecoverable.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citicorp Mortgage Securities Inc)
Delinquency Advances. The (a) On each Delinquency Advance Date, the Master Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in into the Collection Certificate Account from its own funds an amount equal to such the aggregate amount of Delinquency AdvanceAdvances, if any, to be made in respect of the related Distribution Date, (ii) cause to be made an appropriate entry apply amounts held in the records of the Custodial Certificate Account that funds in such account being held for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to Certificateholders in subsequent months in discharge of any such obligation to make such Delinquency Advance Advances, or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating the total amount of Delinquency Advances to be made; provided that, if Late Collections (net of related Workout Fees) of the delinquent Monthly Payments for which Delinquency Advances are to be made for the related Distribution Date, are on deposit in the Certificate Account and available to make such Delinquency AdvanceAdvances, the Master Servicer shall utilize such Late Collections to make such Advances pursuant to clause (ii) above. Any such funds being amounts held in the Custodial Certificate Account for future distribution and so used to make Delinquency Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer from its own funds by deposit in such Custodial the Certificate Account on or before the next succeeding Determination Date (to the extent required not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such Delinquency Advances were made). If, as of 3:00 p.m., New York City time, on or before any future Master Servicer Remittance Date in which such funds would be due. The Servicer Date, the Trustee shall be entitled not have received any Delinquency Advance required to be reimbursed for all Delinquency Advances of its own funds made by the Master Servicer pursuant to this Section 4.03(a) (and the Master Servicer shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a Delinquency Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (000) 000-0000 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (000) 000-0000 (Attention: Master Servicing Manager) (or such alternative number provided by the Master Servicer to the Trustee in writing) as provided soon as possible, but in any event before 5:00 p.m., New York City time, on such day. If after such notice the Trustee does not receive the full amount of such Delinquency Advances by 11:00 a.m., New York City time, on the Business Day immediately following such Master Servicer Remittance Date, then the Trustee shall make the portion of such Delinquency Advances that was required to be, but was not, made by the Master Servicer pursuant to this Section 3.8 hereof4.03(a). Subject to and in accordance with If the provisions of Article VII, in the event that the Servicer Trustee fails to remit make a Delinquency Advance required to be made pursuant by it hereunder, the Fiscal Agent shall make such advance no later than 1:00 p.m. New York City time on the Business Day immediately following such Master Servicer Remittance Date. The making of such Advance by the Fiscal Agent shall cure the failure by the Trustee to this Section 3.19, make such Advance.
(b) The aggregate amount of Delinquency Advances to be made by the Master Servicer shallin respect of the Mortgage Loans (including, unless it determines without limitation, Assumed Monthly Payments for Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Loans for any Distribution Date shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Workout Fees payable hereunder, that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the same month as such Delinquency Advance would constitute a Nonrecoverable Advance, itself make, Distribution Date and that were not paid by or shall cause on behalf of the successor Servicer related Mortgagors or otherwise collected as of the close of business on the later of the related Due Date or the Seller (as owner last day of the servicing rights with respect to related Collection Period. Notwithstanding the Mortgage Loans) to makeforegoing, such Delinquency Advance on or before the Distribution Date following the Servicer Remittance Date on which such Delinquency Advance should have been made. The obligation to make Delinquency Advances if an Appraisal Reduction Amount exists with respect to any Mortgage Loan that is a Required Appraisal Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the Delinquency Advance in respect of such Required Appraisal Loan for the related Distribution Date shall continue be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such Delinquency Advance) by the product of (i) the amount of the interest portion of such Delinquency Advance for such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no Delinquency Advance shall be required to be made hereunder if such Delinquency Advance would, if made, constitute a Nonrecoverable Delinquency Advance. In addition, Nonrecoverable Delinquency Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Loan has been foreclosed or otherwise terminated Loans and REO Properties on deposit in the related Mortgaged Property has not been liquidatedCertificate Account. The Servicer shall deliver to determination by the Master Servicer on or, if applicable, the related Servicer Remittance Date an Officer’s Certificate of Trustee or the Fiscal Agent, that it has made a Servicing Officer indicating the amount of Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance thatAdvance, if made, would constitute a Nonrecoverable Delinquency Advance, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed Delinquency Advance to be made by the Master Servicer, no less than two Business Days prior to the related Delinquency Advance Date) by the Master Servicer to the Trustee (or, if applicable, retained thereby) and the Depositor, 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 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 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, the Special Servicer, the Trustee or the Fiscal Agent, as the case may be, may, subject to its reasonable and good faith judgment determination that such Appraisal will demonstrate the nonrecoverability of the related 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 respect to a particular Delinquency Advance, and the Master Servicer shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a Nonrecoverable particular Delinquency Advance.
(d) The Master Servicer, the Trustee and the 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 Delinquency Advance made thereby (out of its own funds) for so long as such Delinquency Advance is outstanding (or, if any Delinquency Advance is required to be made in respect of a delinquent Monthly Payment on any Mortgage Loan prior to the end of the grace period for such Monthly Payment, for so long as such Delinquency Advance is outstanding following the end of such grace period), payable first, out of Penalty Charges received on the Mortgage Loan or REO Loan as to which such Delinquency Advance was made and, then, once such Delinquency Advance has been reimbursed, out of general collections on the Mortgage Loans and REO Properties pursuant to Section 3.05(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Delinquency Advances. The (a) On each Delinquency Advance Date, the Master Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in into the Collection Certificate Account from its own funds an amount equal to such the aggregate amount of Delinquency AdvanceAdvances, if any, to be made in respect of the related Distribution Date, (ii) cause to be made an appropriate entry apply amounts held in the records of the Custodial Certificate Account that funds in such account being held for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to Certificateholders in subsequent months in discharge of any such obligation to make such Delinquency Advance Advances, or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating the total amount of Delinquency Advances to be made; provided that, if Late Collections (net of related Workout Fees) of the delinquent Monthly Payments for which Delinquency Advances are to be made for the related Distribution Date, are on deposit in the Certificate Account and available to make such Delinquency AdvanceAdvances, the Master Servicer shall utilize such Late Collections to make such Advances pursuant to clause (ii) above. Any such funds being amounts held in the Custodial Certificate Account for future distribution and so used to make Delinquency Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer from its own funds by deposit in such Custodial the Certificate Account on or before the next succeeding Determination Date (to the extent required not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such Delinquency Advances were made). If, as of 3:00 p.m., New York City 120 time, on or before any future Master Servicer Remittance Date in which such funds would be due. The Servicer Date, the Trustee shall be entitled to be reimbursed for all Delinquency Advances of its own funds made pursuant to this Section as provided in Section 3.8 hereof. Subject to and in accordance with the provisions of Article VII, in the event that the Servicer fails to remit a not have received any Delinquency Advance required to be made by the Master Servicer pursuant to this Section 3.19, 4.03(a) (and the Master Servicer shallshall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a Delinquency Advance), unless it determines that then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (000) 000-0000 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (000) 000-0000 (Attention: Master Servicing Manager) (or such alternative number provided by the Master Servicer to the Trustee in writing) as soon as possible, but in any event before 5:00 p.m., New York City time, on such day. If after such notice the Trustee does not receive the full amount of such Delinquency Advance would constitute a Nonrecoverable AdvanceAdvances by 11:00 a.m., itself makeNew York City time, on the Business Day immediately following such Master Servicer Remittance Date, then the Trustee shall make the portion of such Delinquency Advances that was required to be, but was not, made by the Master Servicer pursuant to this Section 4.03(a).
(b) The aggregate amount of Delinquency Advances to be made by the Master Servicer in respect of the Mortgage Loans (including, without limitation, Assumed Monthly Payments for Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Loans for any Distribution Date shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Workout Fees payable hereunder, that were due or shall cause deemed due, as the successor Servicer case may be, in respect thereof on their respective Due Dates during the same month as such Distribution Date and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the later of the related Due Date or the Seller (as owner last day of the servicing rights with respect to the Mortgage Loans) to makerelated Collection Period; provided that, such Delinquency Advance on or before the Distribution Date following the Servicer Remittance Date on which such Delinquency Advance should have been made. The obligation to make Delinquency Advances if an Appraisal Reduction Amount exists with respect to any Mortgage Required Appraisal Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the Delinquency Advance in respect of such Required Appraisal Loan for the related Distribution Date shall continue be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such Delinquency Advance) to equal the product of (i) the amount of the interest portion of such Delinquency Advance for such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no Delinquency Advance shall be required to be made hereunder if such Delinquency Advance would, if made, constitute a Nonrecoverable Delinquency Advance. In addition, Nonrecoverable Delinquency Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Loan has been foreclosed or otherwise terminated Loans and REO Properties on deposit in the related Mortgaged Property has not been liquidatedCertificate Account. The Servicer shall deliver to determination by the Master Servicer on or, if applicable, the related Servicer Remittance Date an Officer’s Certificate of Trustee, that it has made a Servicing Officer indicating the amount of Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance thatAdvance, if made, would constitute a Nonrecoverable Delinquency Advance, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed Delinquency Advance to be made by the Master Servicer, no less than two Business Days prior to the related Delinquency Advance Date) by the Master Servicer to the Trustee (or, if applicable, retained thereby) and the Depositor, 121 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 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 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, the Special Servicer or the Trustee, as the case may be, may, subject to its reasonable and good faith judgment determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust Fund. The Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer or the Special Servicer with respect to a particular Delinquency Advance, and the Master Servicer shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a Nonrecoverable particular Delinquency Advance.
(d) 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 Delinquency Advance made thereby (out of its own funds) for so long as such Delinquency Advance is outstanding (or, if any Delinquency Advance is required to be made in respect of a delinquent Monthly Payment on any Mortgage Loan prior to the end of the grace period for such Monthly Payment, for so long as such Delinquency Advance is outstanding following the end of such grace period), payable first, out of Penalty Charges received on the Mortgage Loan or REO Loan as to which such Delinquency Advance was made and, then, once such Delinquency Advance has been reimbursed, out of general collections on the Mortgage Loans and REO Properties pursuant to Section 3.05(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Delinquency Advances. The (a) On each Delinquency Advance Date, the Master Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in into the Collection Certificate Account from its own funds an amount equal to such the aggregate amount of Delinquency AdvanceAdvances, if any, to be made in respect of the related Distribution Date, (ii) cause to be made an appropriate entry apply amounts held in the records of the Custodial Certificate Account that funds in such account being held for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to Certificateholders in subsequent months in discharge of any such obligation to make such Delinquency Advance Advances, or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating the total amount of Delinquency Advances to be made; provided that, if Late Collections (net of related Workout Fees) of the delinquent Monthly Payments for which Delinquency Advances are to be made for the related Distribution Date, are on deposit in the Certificate Account and available to make such Delinquency AdvanceAdvances, the Master Servicer shall utilize such Late Collections to make such Advances pursuant to clause (ii) above. Any such funds being amounts held in the Custodial Certificate Account for future distribution and so used to make Delinquency Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer from its own funds by deposit in such Custodial the Certificate Account on or before the next succeeding Determination Date (to the extent required not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such Delinquency Advances were made). If, as of 3:00 p.m., New York City time, on or before any future Master Servicer Remittance Date in which such funds would be due. The Servicer Date, the Trustee shall be entitled not have received any Delinquency Advance required to be reimbursed for all Delinquency Advances of its own funds made by the Master Servicer pursuant to this Section 4.03(a) (and the Master Servicer shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a Delinquency Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (000) 000-0000 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (000) 000-0000 (Attention: Master Servicing Manager) (or such alternative number provided by the Master Servicer to the Trustee in writing) as provided soon as possible, but in any event before 5:00 p.m., New York City time, on such day. If after such notice the Trustee does not receive the full amount of such Delinquency Advances by 11:00 a.m., New York City time, on the Business Day immediately following such Master Servicer Remittance Date, then the Trustee shall make the portion of such Delinquency Advances that was required to be, but was not, made by the Master Servicer pursuant to this Section 3.8 hereof4.03(a). Subject to and in accordance with If the provisions of Article VII, in the event that the Servicer Trustee fails to remit make a Delinquency Advance required to be made pursuant by it hereunder, the Fiscal Agent shall make such advance no later than 1:00 p.m. New York City time on the Business Day immediately following such Master Servicer Remittance Date. The making of such advance by the Fiscal Agent shall cure the failure by the Trustee to this Section 3.19, make such advance.
(b) The aggregate amount of Delinquency Advances to be made by the Master Servicer shall, unless it determines that such Delinquency Advance would constitute a Nonrecoverable Advance, itself make, or shall cause the successor Servicer or the Seller (as owner in respect of the servicing rights with respect Mortgage Loans (including, without limitation, Balloon Mortgage Loans delinquent as to the Mortgage Loanstheir respective Balloon Payments) to make, such Delinquency Advance on or before the and any REO Loans for any Distribution Date following shall equal, subject to subsection (c) below, the Servicer Remittance Date aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Workout Fees payable hereunder, that were due or deemed due, as the case may be, in respect thereof on which such Delinquency Advance should have been made. The obligation to make Delinquency Advances their respective Due Dates during the related Collection Period and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the last day of the related Collection Period; provided that, if an Appraisal Reduction Amount exists with respect to any Mortgage Required Appraisal Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the Delinquency Advance in respect of such Required Appraisal Loan for the related Distribution Date shall continue be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such Delinquency Advance) to equal the product of (i) the amount of the interest portion of such Delinquency Advance for such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no Delinquency Advance shall be required to be made hereunder if such Delinquency Advance would, if made, constitute a Nonrecoverable Delinquency Advance. In addition, Nonrecoverable Delinquency Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Loan has been foreclosed or otherwise terminated Loans and REO Properties on deposit in the related Mortgaged Property has not been liquidatedCertificate Account. The Servicer shall deliver to determination by the Master Servicer on or, if applicable, the related Servicer Remittance Date an Officer’s Certificate of Trustee or Fiscal Agent, that it has made a Servicing Officer indicating the amount of Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance thatAdvance, if made, would constitute a Nonrecoverable Delinquency Advance, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed Delinquency Advance, no less than two Business Days prior to the related Delinquency Advance Date) by the Master Servicer to the Trustee (or, if applicable, retained thereby) and the Depositor, 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 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 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, the Special Servicer, the Trustee or the Fiscal Agent, as the case may be, may, subject to its reasonable and good faith judgment determination that such Appraisal will demonstrate the nonrecoverability of the related 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 respect to a particular Delinquency Advance, and the Master Servicer shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a Nonrecoverable particular Delinquency Advance.
(d) The Master Servicer, the Trustee and the 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 Delinquency Advance made thereby (out of its own funds) for so long as such Delinquency Advance is outstanding (or, if any Delinquency Advance is required to be made in respect of a delinquent Monthly Payment on any Mortgage Loan prior to the end of the grace period for such Monthly Payment, for so long as such Delinquency Advance is outstanding following the end of such grace period), payable first, out of Penalty Charges received on the Mortgage Loan or REO Loan as to which such Delinquency Advance was made and, then, once such Delinquency Advance has been reimbursed, out of general collections on the Mortgage Loans and REO Properties.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Delinquency Advances. The Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such proposed Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in the Collection Account from its own funds an amount equal to such Delinquency Advance, (ii) cause to be made an appropriate entry in the records of the Custodial Account that funds in such account being held for future distribution payment or withdrawal have been, as permitted by this Section 3.193.20, used by the Servicer to make such Delinquency Advance or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating the amount of such Delinquency Advance. Any such funds being held in the Custodial Account for future distribution payment and so used shall be replaced by the Servicer from its own funds by deposit in such Custodial Account to the extent required on or before any future Servicer Remittance Date in which such funds would be due. The Servicer shall be entitled to be reimbursed for all Delinquency Advances of its own funds made pursuant to this Section as provided in Section 3.8 hereof. Subject to and in accordance with the provisions of Article VII, in the event that the Servicer fails to remit a Delinquency Advance required to be made pursuant to this Section 3.193.20, the Master Servicer shall, unless it determines that such Delinquency Advance would constitute a Nonrecoverable Advance, itself make, or shall cause the successor Servicer or AMC (on behalf of the Seller (Seller, as owner of the servicing rights with respect to the Mortgage Loans) to make, such Delinquency Advance on or before the Distribution Payment Date following the Servicer Remittance Date on which such Delinquency Advance should have been made. The obligation to make Delinquency Advances with respect to any Mortgage Loan shall continue if such Mortgage Loan has been foreclosed or otherwise terminated and the related Mortgaged Property has not been liquidated. The Servicer shall deliver to the Master Servicer on the related Servicer Remittance Date an Officer’s 's Certificate of a Servicing Officer indicating the amount of any proposed Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance.
Appears in 1 contract
Delinquency Advances. The (a) On each Delinquency Advance Date, the Master Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in into the Collection Account Mortgage Loan Subaccount from its own funds an amount equal to such the aggregate amount of Delinquency AdvanceAdvances, if any, to be made in respect of the related Distribution Date, (ii) cause to be made an appropriate entry apply amounts held in the records of the Custodial Account that funds in such account being held Mortgage Loan Subaccount for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to Certificateholders in subsequent months in discharge of any such obligation to make such Delinquency Advance Advances, or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating the total amount of Delinquency Advances to be made; provided that, if Late Collections (net of related Workout Fees) of the delinquent Monthly Payments for which Delinquency Advances are to be made for the related Distribution Date, are on deposit in the Mortgage Loan Subaccount and available to make such Delinquency AdvanceAdvances, the Master Servicer shall utilize such Late Collections to make such Advances pursuant to clause (ii) above. Any such funds being amounts held in the Custodial Account Mortgage Loan Subaccount for future distribution and so used to make Delinquency Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer from its own funds by deposit in such Custodial Account the Mortgage Loan Subaccount on or before the next succeeding Determination Date (to the extent required not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such Delinquency Advances were made). If, as of 3:00 p.m., New York City time, on or before any future Master Servicer Remittance Date in which such funds would be due. The Servicer Date, the Trustee shall be entitled to be reimbursed for all Delinquency Advances of its own funds made pursuant to this Section as provided in Section 3.8 hereof. Subject to and in accordance with the provisions of Article VII, in the event that the Servicer fails to remit a not have received any Delinquency Advance required to be made by the Master Servicer pursuant to this Section 3.19, 4.03(a) (and the Master Servicer shallshall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a Delinquency Advance), unless it determines that then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (000) 000-0000 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (000) 000-0000 (Attention: Master Servicing Manager) (or such alternative number provided by the Master Servicer to the Trustee in writing) as soon as possible, but in any event before 5:00 p.m., New York City time, on such day. If after such notice the Trustee does not receive the full amount of such Delinquency Advance would constitute a Nonrecoverable AdvanceAdvances by 11:00 a.m., itself makeNew York City time, on the Business Day immediately following such Master Servicer Remittance Date, then the Trustee shall make the portion of such Delinquency Advances that was required to be, but was not, made by the Master Servicer pursuant to this Section 4.03(a).
(b) The aggregate amount of Delinquency Advances to be made by the Master Servicer in respect of the Mortgage Loans (including, without limitation, Assumed Monthly Payments for Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Loans for any Distribution Date shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Workout Fees payable hereunder, that were due or shall cause deemed due, as the successor Servicer case may be, in respect thereof on their respective Due Dates during the same month as such Distribution Date and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the later of the related Due Date or the Seller (as owner last day of the servicing rights with respect to related Collection Period. Notwithstanding the Mortgage Loans) to makeforegoing, such Delinquency Advance on or before the Distribution Date following the Servicer Remittance Date on which such Delinquency Advance should have been made. The obligation to make Delinquency Advances if an Appraisal Reduction Amount exists with respect to any Mortgage Loan that is a Required Appraisal Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the Delinquency Advance in respect of such Required Appraisal Loan for the related Distribution Date shall continue be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such Delinquency Advance) by the product of (i) the amount of the interest portion of such Delinquency Advance for such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no Delinquency Advance shall be required to be made hereunder if such Delinquency Advance would, if made, constitute a Nonrecoverable Delinquency Advance. In addition, Nonrecoverable Delinquency Advances shall be reimbursable pursuant to Section 3.05(b) out of general collections on the Mortgage Loans and REO Properties on deposit in the Mortgage Loan has been foreclosed or otherwise terminated and the related Mortgaged Property has not been liquidatedSubaccount. The Servicer shall deliver to determination by the Master Servicer on or, if applicable, the related Servicer Remittance Date an Officer’s Certificate of Trustee, that it has made a Servicing Officer indicating the amount of Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance thatAdvance, if made, would constitute a Nonrecoverable Delinquency Advance, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed Delinquency Advance to be made by the Master Servicer, no less than two Business Days prior to the related Delinquency Advance Date) by the Master Servicer to the Trustee (or, if applicable, retained thereby) and the Depositor, 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 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 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, the Special Servicer or the Trustee, as the case may be, may, subject to its reasonable and good faith judgment determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust Fund. The Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer or the Special Servicer with respect to a particular Delinquency Advance, and the Master Servicer shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a Nonrecoverable particular Delinquency Advance.
(d) 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 Delinquency Advance made thereby (out of its own funds) for so long as such Delinquency Advance is outstanding (or, if any Delinquency Advance is required to be made in respect of a Monthly Payment on any Mortgage Loan prior to its Due Date or the end of the grace period for such Monthly Payment, for so long as such Delinquency Advance is outstanding following the later of (i) such Due Date and (ii) the end of such grace period), payable first, out of Penalty Charges received on the Mortgage Loan or REO Loan as to which such Delinquency Advance was made and, then, once such Delinquency Advance has been reimbursed, out of general collections on the Mortgage Loans and REO Properties on deposit in the Mortgage Loan Subaccount pursuant to Section 3.05(b).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Delinquency Advances. The Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in Advance pursuant to the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advancedefinition thereof. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in the Collection Account from its own funds an amount equal to such Delinquency Advance, (ii) cause to be made an appropriate entry in the records of the Custodial Account that funds in such account being held for future distribution payment or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to make such Delinquency Advance or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating the amount of such Delinquency Advance. Any such funds being held in the Custodial Account for future distribution payment and so used shall be replaced by the Servicer from its own funds by deposit in such Custodial Account to the extent required on or before any future Servicer Remittance Date in which such funds would be due. The Servicer shall be entitled to be reimbursed for all Delinquency Advances of its own funds made pursuant to this Section as provided in Section 3.8 hereof. Subject to and in accordance with the provisions of Article VII, in the event that the Servicer fails to remit a Delinquency Advance required to be made pursuant to this Section 3.19, the Master Servicer shall, unless it determines that such Delinquency Advance would constitute a Nonrecoverable Advance, itself make, or shall cause the successor Servicer or Aegis (on behalf of the Seller (Seller, as owner of the servicing rights with respect to the Mortgage Loans) to make, such Delinquency Advance on or before the Distribution Payment Date following the Servicer Remittance Date on which such Delinquency Advance should have been made. The obligation to make Delinquency Advances with respect to any Mortgage Loan shall continue if such Mortgage Loan has been foreclosed or otherwise terminated and the related Mortgaged Property has not been liquidated, provided that in no event shall the Servicer be required to make any proposed Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. The Servicer shall deliver to the Master Servicer on the related Servicer Remittance Date an Officer’s Certificate of a Servicing Officer indicating the amount of any proposed Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Aegis Asset Backed Securities Trust 2005-1)
Delinquency Advances. The (a) On each Delinquency Advance Date, the Master Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in into the Collection Certificate Account from its own funds an amount equal to such the aggregate amount of Delinquency AdvanceAdvances, if any, to be made in respect of the related Distribution Date, (ii) cause to be made an appropriate entry apply amounts held in the records of the Custodial Certificate Account that funds in such account being held for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to Certificateholders in subsequent months in discharge of any such obligation to make such Delinquency Advance Advances, or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating the total amount of Delinquency Advances to be made; provided that, if Late Collections (net of related Workout Fees) of the delinquent Monthly Payments for which Delinquency Advances are to be made for the related Distribution Date, are on deposit in the Certificate Account and available to make such Delinquency AdvanceAdvances, the Master Servicer shall utilize such Late Collections to make such Advances pursuant to clause (ii) above. Any such funds being amounts held in the Custodial Certificate Account for future distribution and so used to make Delinquency Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer from its own funds by deposit in such Custodial the Certificate Account on or before the next succeeding Determination Date (to the extent required not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such Delinquency Advances were made). If, as of 3:00 p.m., New York City time, on or before any future Master Servicer Remittance Date in which such funds would be due. The Servicer Date, the Trustee shall be entitled to be reimbursed for all Delinquency Advances of its own funds made pursuant to this Section as provided in Section 3.8 hereof. Subject to and in accordance with the provisions of Article VII, in the event that the Servicer fails to remit a not have received any Delinquency Advance required to be made by the Master Servicer pursuant to this Section 3.19, 4.03(a) (and the Master Servicer shallshall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a Delinquency Advance), unless it determines that then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (000) 000-0000 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (000) 000-0000 (Attention: Master Servicing Manager) (or such alternative number provided by the Master Servicer to the Trustee in writing) as soon as possible, but in any event before 5:00 p.m., New York City time, on such day. If after such notice the Trustee does not receive the full amount of such Delinquency Advance would constitute a Nonrecoverable AdvanceAdvances by 11:00 a.m., itself makeNew York City time, on the Business Day immediately following such Master Servicer Remittance Date, then the Trustee shall make the portion of such Delinquency Advances that was required to be, but was not, made by the Master Servicer pursuant to this Section 4.03(a).
(b) The aggregate amount of Delinquency Advances to be made by the Master Servicer in respect of the Mortgage Loans (including, without limitation, Assumed Monthly Payments for Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Loans for any Distribution Date shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Workout Fees payable hereunder, that were due or shall cause deemed due, as the successor Servicer case may be, in respect thereof on their respective Due Dates during the same month as such Distribution Date and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the later of the related Due Date or the Seller (as owner last day of the servicing rights with respect to related Collection Period. Notwithstanding the Mortgage Loans) to makeforegoing, such Delinquency Advance on or before the Distribution Date following the Servicer Remittance Date on which such Delinquency Advance should have been made. The obligation to make Delinquency Advances if an Appraisal Reduction Amount exists with respect to any Mortgage Loan that is a Required Appraisal Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the Delinquency Advance in respect of such Required Appraisal Loan for the related Distribution Date shall continue be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such Delinquency Advance) by the product of (i) the amount of the interest portion of such Delinquency Advance for such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no Delinquency Advance shall be required to be made hereunder if such Delinquency Advance would, if made, constitute a Nonrecoverable Delinquency Advance. In addition, Nonrecoverable Delinquency Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Loan has been foreclosed or otherwise terminated Loans and REO Properties on deposit in the related Mortgaged Property has not been liquidatedCertificate Account. The Servicer shall deliver to determination by the Master Servicer on or, if applicable, the related Servicer Remittance Date an Officer’s Certificate of Trustee, that it has made a Servicing Officer indicating the amount of Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance thatAdvance, if made, would constitute a Nonrecoverable Delinquency Advance, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed Delinquency Advance to be made by the Master Servicer, no less than two Business Days prior to the related Delinquency Advance Date) by the Master Servicer to the Trustee (or, if applicable, retained thereby) and the Depositor, 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 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 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, the Special Servicer or the Trustee, as the case may be, may, subject to its reasonable and good faith judgment determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust Fund. The Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer or the Special Servicer with respect to a particular Delinquency Advance, and the Master Servicer shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a Nonrecoverable particular Delinquency Advance.
(d) 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 Delinquency Advance made thereby (out of its own funds) for so long as such Delinquency Advance is outstanding (or, if any Delinquency Advance is required to be made in respect of a delinquent Monthly Payment on any Mortgage Loan prior to the end of the grace period for such Monthly Payment, for so long as such Delinquency Advance is outstanding following the end of such grace period), payable first, out of Penalty Charges received on the Mortgage Loan or REO Loan as to which such Delinquency Advance was made and, then, once such Delinquency Advance has been reimbursed, out of general collections on the Mortgage Loans and REO Properties pursuant to Section 3.05(a). 139
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Delinquency Advances. The (a) On each Delinquency Advance Date, the Master Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in into the Collection Certificate Account from its own funds an amount equal to such the aggregate amount of Delinquency AdvanceAdvances, if any, to be made in respect of the related Distribution Date, (ii) cause to be made an appropriate entry apply amounts held in the records of the Custodial Certificate Account that funds in such account being held for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to Certificateholders in subsequent months in discharge of any such obligation to make such Delinquency Advance Advances, or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating the total amount of Delinquency Advances to be made; provided that, if Late Collections (net of related Workout Fees) of the delinquent Monthly Payments for which Delinquency Advances are to be made for the related Distribution Date, are on deposit in the Certificate Account and available to make such Delinquency AdvanceAdvances, the Master Servicer shall utilize such Late Collections to make such Advances pursuant to clause (ii) above. Any such funds being amounts held in the Custodial Certificate Account for future distribution and so used to make Delinquency Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer from its own funds by deposit in such Custodial the Certificate Account on or before the next succeeding Determination Date (to the extent required not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such Delinquency Advances were made). If, as of 3:00 p.m., New York City time, on or before any future Master Servicer Remittance Date in which such funds would be due. The Servicer Date, the Trustee shall be entitled to be reimbursed for all Delinquency Advances of its own funds made pursuant to this Section as provided in Section 3.8 hereof. Subject to and in accordance with the provisions of Article VII, in the event that the Servicer fails to remit a not have received any Delinquency Advance required to be made by the Master Servicer pursuant to this Section 3.19, 4.03(a) (and the Master Servicer shallshall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a Delinquency Advance), unless it determines that then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no.(000) 000-0000 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (000) 000-0000 (Attention: Master Servicing Manager) (or such alternative number provided by the Master Servicer to the Trustee in writing) as soon as possible, but in any event before 5:00 p.m., New York City time, on such day. If after such notice the Trustee does not receive the full amount of such Delinquency Advance would constitute a Nonrecoverable AdvanceAdvances by 11:00 a.m., itself makeNew York City time, on the Business Day immediately following such Master Servicer Remittance Date, then the Trustee shall make the portion of such Delinquency Advances that was required to be, but was not, made by the Master Servicer pursuant to this Section 4.03(a). 147
(b) The aggregate amount of Delinquency Advances to be made by the Master Servicer in respect of the Mortgage Loans (including, without limitation, Assumed Monthly Payments for Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Loans for any Distribution Date shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Workout Fees payable hereunder, that were due or shall cause deemed due, as the successor Servicer case may be, in respect thereof on their respective Due Dates during the same month as such Distribution Date and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the later of the related Due Date or the Seller (as owner last day of the servicing rights with respect to the Mortgage Loans) to makerelated Collection Period; provided that, such Delinquency Advance on or before the Distribution Date following the Servicer Remittance Date on which such Delinquency Advance should have been made. The obligation to make Delinquency Advances if an Appraisal Reduction Amount exists with respect to any Mortgage Required Appraisal Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the Delinquency Advance in respect of such Required Appraisal Loan for the related Distribution Date shall continue be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such Delinquency Advance) to equal the product of (i) the amount of the interest portion of such Delinquency Advance for such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no Delinquency Advance shall be required to be made hereunder if such Delinquency Advance would, if made, constitute a Nonrecoverable Delinquency Advance. In addition, Nonrecoverable Delinquency Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Loan has been foreclosed or otherwise terminated Loans and REO Properties on deposit in the related Mortgaged Property has not been liquidatedCertificate Account. The Servicer shall deliver to determination by the Master Servicer on or, if applicable, the related Servicer Remittance Date an Officer’s Certificate of Trustee, that it has made a Servicing Officer indicating the amount of Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance thatAdvance, if made, would constitute a Nonrecoverable Delinquency Advance, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed Delinquency Advance to be made by the Master Servicer, no less than two Business Days prior to the related Delinquency Advance Date) by the Master Servicer to the Trustee (or, if applicable, retained thereby) and the Depositor, 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 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 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, the Special Servicer or the Trustee, as the case may be, may, subject to its reasonable and good faith judgment determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust Fund. The Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer or the Special Servicer with respect to a particular Delinquency Advance, and the Master Servicer shall be entitled to rely on any 148 determination of nonrecoverability that may have been made by the Special Servicer with respect to a Nonrecoverable particular Delinquency Advance.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Delinquency Advances. The (a) On each Delinquency Advance Date, the Master Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in into the Collection Certificate Account from its own funds an amount equal to such the aggregate amount of Delinquency AdvanceAdvances, if any, to be made in respect of the related Distribution Date, (ii) cause to be made an appropriate entry apply amounts held in the records of the Custodial Certificate Account that funds in such account being held for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to Certificateholders in subsequent months in discharge of any such obligation to make such Delinquency Advance Advances, or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating the total amount of Delinquency Advances to be made; provided that, if Late Collections (net of related Workout Fees) of the delinquent Monthly Payments for which Delinquency Advances are to be made for the related Distribution Date, are on deposit in the Certificate Account and available to make such Delinquency AdvanceAdvances, the Master Servicer shall utilize such Late Collections to make such Advances pursuant to clause (ii) above. Any such funds being amounts held in the Custodial Certificate Account for future distribution and so used to make Delinquency Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer from its own funds by deposit in such Custodial the Certificate Account on or before the next succeeding Determination Date (to the extent required not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such Delinquency Advances were made). If, as of 3:00 p.m., New York City time, on or before any future Master Servicer Remittance Date in which such funds would be due. The Servicer Date, the Trustee shall be entitled to be reimbursed for all Delinquency Advances of its own funds made pursuant to this Section as provided in Section 3.8 hereof. Subject to and in accordance with the provisions of Article VII, in the event that the Servicer fails to remit a not have received any Delinquency Advance required to be made by the Master Servicer pursuant to this Section 3.19, 4.03(a) (and the Master Servicer shallshall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a Delinquency Advance), unless it determines that then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (000) 000-0000 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (000) 000-0000 (Attention: Master Servicing Manager) (or such alternative number provided by the Master Servicer to the Trustee in writing) as soon as possible, but in any event before 5:00 p.m., New York City time, on such day. If after such notice the Trustee does not receive the full amount of such Delinquency Advance would constitute a Nonrecoverable AdvanceAdvances by 11:00 a.m., itself makeNew York City time, on the Business Day immediately following such Master Servicer Remittance Date, then the Trustee shall make the portion of such Delinquency Advances that was required to be, but was not, made by the Master Servicer pursuant to this Section 4.03(a).
(b) The aggregate amount of Delinquency Advances to be made by the Master Servicer in respect of the Mortgage Loans (including, without limitation, Assumed Monthly Payments for Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Loans for any Distribution Date shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Workout Fees payable hereunder, that were due or shall cause deemed due, as the successor Servicer case may be, in respect thereof on their respective Due Dates during the same month as such Distribution Date and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the later of the related Due Date or the Seller (as owner last day of the servicing rights with respect to the Mortgage Loans) to makerelated Collection Period; provided that, such Delinquency Advance on or before the Distribution Date following the Servicer Remittance Date on which such Delinquency Advance should have been made. The obligation to make Delinquency Advances if an Appraisal Reduction Amount exists with respect to any Mortgage Required Appraisal Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the Delinquency Advance in respect of such Required Appraisal Loan for the related Distribution Date shall continue be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such Delinquency Advance) to equal the product of (i) the amount of the interest portion of such Delinquency Advance for such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no Delinquency Advance shall be required to be made hereunder if such Delinquency Advance would, if made, constitute a Nonrecoverable Delinquency Advance. In addition, Nonrecoverable Delinquency Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Loan has been foreclosed or otherwise terminated Loans and REO Properties on deposit in the related Mortgaged Property has not been liquidatedCertificate Account. The Servicer shall deliver to determination by the Master Servicer on or, if applicable, the related Servicer Remittance Date an Officer’s Certificate of Trustee, that it has made a Servicing Officer indicating the amount of Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance thatAdvance, if made, would constitute a Nonrecoverable Delinquency Advance, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed Delinquency Advance to be made by the Master Servicer, no less than two Business Days prior to the related Delinquency Advance Date) by the Master Servicer to the Trustee (or, if applicable, retained thereby) and the Depositor, 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 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 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, the Special Servicer or the Trustee, as the case may be, may, subject to its reasonable and good faith judgment determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust Fund. The Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer or the Special Servicer with respect to a particular Delinquency Advance, and the Master Servicer shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a Nonrecoverable particular Delinquency Advance.
(d) 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 Delinquency Advance made thereby (out of its own funds) for so long as such Delinquency Advance is outstanding (or, if any Delinquency Advance is required to be made in respect of a delinquent Monthly Payment on any Mortgage Loan prior to the end of 139 the grace period for such Monthly Payment, for so long as such Delinquency Advance is outstanding following the end of such grace period), payable first, out of Penalty Charges received on the Mortgage Loan or REO Loan as to which such Delinquency Advance was made and, then, once such Delinquency Advance has been reimbursed, out of general collections on the Mortgage Loans and REO Properties pursuant to Section 3.05(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Delinquency Advances. The (a) On each Delinquency Advance Date, the Master Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in into the Collection Certificate Account from its own funds an amount equal to such the aggregate amount of Delinquency AdvanceAdvances, if any, to be made in respect of the related Distribution Date, (ii) cause to be made an appropriate entry apply amounts held in the records of the Custodial Certificate Account that funds in such account being held for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to Certificateholders in subsequent months in discharge of any such obligation to make such Delinquency Advance Advances, or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating the total amount of Delinquency Advances to be made; provided that, if Late Collections (net of related Workout Fees) of the delinquent Monthly Payments for which Delinquency Advances are to be made for the related Distribution Date, are on deposit in the Certificate Account and available to make such Delinquency AdvanceAdvances, the Master Servicer shall utilize such Late Collections to make such Advances pursuant to clause (ii) above. Any such funds being amounts held in the Custodial Certificate Account for future distribution and so used to make Delinquency Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer from its own funds by deposit in such Custodial the Certificate Account on or before the next succeeding Determination Date (to the extent required not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such Delinquency Advances were made). If, as of 3:00 p.m., New York City time, on or before any future Master Servicer Remittance Date in which such funds would be due. The Servicer Date, the Trustee shall be entitled not have received any Delinquency Advance required to be reimbursed for all Delinquency Advances of its own funds made by the Master Servicer pursuant to this Section 4.03(a) (and the Master Servicer shall not have delivered to the Trustee the requisite Officer's 153 Certificate and documentation related to a determination of nonrecoverability of a Delinquency Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (000) 000-0000 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (215) 000-0000 (Attention: Master Servicing Manager) (or such alternative number provided by the Master Servicer to the Trustee in writing) as provided soon as possible, but in any event before 5:00 p.m., New York City time, on such day. If after such notice the Trustee does not receive the full amount of such Delinquency Advances by 11:00 a.m., New York City time, on the Business Day immediately following such Master Servicer Remittance Date, then the Trustee shall make the portion of such Delinquency Advances that was required to be, but was not, made by the Master Servicer pursuant to this Section 3.8 hereof4.03(a). Subject to and in accordance with If the provisions of Article VII, in the event that the Servicer Trustee fails to remit make a Delinquency Advance required to be made pursuant by it hereunder, the Fiscal Agent shall make such advance no later than 1:00 p.m. New York City time on the Business Day immediately following such Master Servicer Remittance Date. The making of such Advance by the Fiscal Agent shall cure the failure by the Trustee to this Section 3.19, make such Advance.
(b) The aggregate amount of Delinquency Advances to be made by the Master Servicer shallin respect of the Mortgage Loans (including, unless it determines without limitation, Assumed Monthly Payments for Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Loans for any Distribution Date shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Workout Fees payable hereunder, that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the same month as such Delinquency Advance would constitute a Nonrecoverable Advance, itself make, Distribution Date and that were not paid by or shall cause on behalf of the successor Servicer related Mortgagors or otherwise collected as of the close of business on the later of the related Due Date or the Seller (as owner last day of the servicing rights with respect to related Collection Period. Notwithstanding the Mortgage Loans) to makeforegoing, such Delinquency Advance on or before the Distribution Date following the Servicer Remittance Date on which such Delinquency Advance should have been made. The obligation to make Delinquency Advances if an Appraisal Reduction Amount exists with respect to any Mortgage Loan that is a Required Appraisal Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the Delinquency Advance in respect of such Required Appraisal Loan for the related Distribution Date shall continue be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such Delinquency Advance) by the product of (i) the amount of the interest portion of such Delinquency Advance for such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no Delinquency Advance shall be required to be made hereunder if such Delinquency Advance would, if made, constitute a Nonrecoverable Delinquency Advance. In addition, Nonrecoverable Delinquency Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Loan has been foreclosed or otherwise terminated Loans and REO Properties on deposit in the related Mortgaged Property has not been liquidatedCertificate Account. The Servicer shall deliver to determination by the Master Servicer on or, if applicable, the related Servicer Remittance Date an Officer’s Certificate of Trustee or Fiscal Agent, that it has made a Servicing Officer indicating the amount of Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance thatAdvance, if made, would constitute a Nonrecoverable Delinquency Advance, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed Delinquency Advance to be made by the Master Servicer, no less than two Business Days prior to the related Delinquency Advance Date) by the Master Servicer to the Trustee (or, if applicable, retained thereby) and the Depositor, 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 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 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, the Special Servicer, the Trustee or the Fiscal Agent, as the case may be, may, subject to its reasonable and good faith judgment determination that such Appraisal will demonstrate the nonrecoverability of the related 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 respect to a particular Delinquency Advance, and the Master Servicer shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a Nonrecoverable particular Delinquency Advance.
(d) The Master Servicer, the Trustee and the 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 Delinquency Advance made thereby (out of its own funds) for so long as such Delinquency Advance is outstanding (or, if any Delinquency Advance is required to be made in respect of a Monthly Payment on any Mortgage Loan prior to its Due Date or the end of the grace period for such Monthly Payment, for so long as such Delinquency Advance is outstanding following the later of (i) such Due Date and (ii) the end of such grace period), payable first, out of Penalty Charges received on the Mortgage Loan or REO Loan as to which such Delinquency Advance was made and, then, once such Delinquency Advance has been reimbursed, out of general collections on the Mortgage Loans and REO Properties pursuant to Section 3.05(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Delinquency Advances. The (a) On each Delinquency Advance Date, the Master Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in into the Collection Certificate Account from its own funds an amount equal to such the aggregate amount of Delinquency AdvanceAdvances, if any, to be made in respect of the related Distribution Date, (ii) cause to be made an appropriate entry apply amounts held in the records of the Custodial Certificate Account that funds in such account being held for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to Certificateholders in subsequent months in discharge of any such obligation to make such Delinquency Advance Advances, or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating the total amount of Delinquency Advances to be made; provided that, if Late Collections (net of related Workout Fees) of the delinquent Monthly Payments for which Delinquency Advances are to be made for the related Distribution Date, are on deposit in the Certificate Account and available to make such Delinquency AdvanceAdvances, the Master Servicer shall utilize such Late Collections to make such Advances pursuant to clause (ii) above. Any such funds being amounts held in the Custodial Certificate Account for future distribution and so used to make Delinquency Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer from its own funds by deposit in such Custodial the Certificate Account on or before the next succeeding Determination Date (to the extent required not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such Delinquency Advances were made). If, as of 3:00 p.m., New York City time, on or before any future Master Servicer Remittance Date in which such funds would be due. The Servicer Date, the Trustee shall be entitled not have received any Delinquency Advance required to be reimbursed for all Delinquency Advances of its own funds made by the Master Servicer pursuant to this Section 4.03(a) (and the Master Servicer shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a Delinquency Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (000) 000-0000 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (000) 000-0000 (Attention: Master Servicing Manager) (or such alternative number provided by the Master Servicer to the Trustee in writing) as provided soon as possible, but in any event before 5:00 p.m., New York City time, on such day. If after such notice the Trustee does not receive the full amount of such Delinquency Advances by 11:00 a.m., New York City time, on the Business Day immediately following such Master Servicer Remittance Date, then the Trustee shall make the portion of such Delinquency Advances that was required to be, but was not, made by the Master Servicer pursuant to this Section 3.8 hereof4.03(a). Subject to and in accordance with If the provisions of Article VII, in the event that the Servicer Trustee fails to remit make a Delinquency Advance required to be made pursuant by it hereunder, the Fiscal Agent shall make such advance no later than 1:00 p.m. New York City time on the Business Day immediately following such Master Servicer Remittance Date. The making of such Advance by the Fiscal Agent shall cure the failure by the Trustee to this Section 3.19, make such Advance.
(b) The aggregate amount of Delinquency Advances to be made by the Master Servicer shallin respect of the Mortgage Loans (including, unless it determines without limitation, Assumed Monthly Payments for Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Loans for any Distribution Date shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments (or, in the case of the Participation Interest, the portion of such Monthly Payments or Assumed Monthly Payments attributable to the portion of the applicable Mortgage Loan represented by the Participation Interest), in each case net of related Workout Fees payable hereunder, that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the same month as such Delinquency Advance would constitute a Nonrecoverable Advance, itself make, Distribution Date and that were not paid by or shall cause on behalf of the successor Servicer related Mortgagors or otherwise collected as of the close of business on the later of the related Due Date or the Seller (as owner last day of the servicing rights with respect to the Mortgage Loans) to makerelated Collection Period; provided that, such Delinquency Advance on or before the Distribution Date following the Servicer Remittance Date on which such Delinquency Advance should have been made. The obligation to make Delinquency Advances if an Appraisal Reduction Amount exists with respect to any Mortgage Required Appraisal Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the Delinquency Advance in respect of such Required Appraisal Loan for the related Distribution Date shall continue be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such Delinquency Advance) to equal the product of (i) the amount of the interest portion of such Delinquency Advance for such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction 143 Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no Delinquency Advance shall be required to be made hereunder if such Delinquency Advance would, if made, constitute a Nonrecoverable Delinquency Advance. In addition, Nonrecoverable Delinquency Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Loan has been foreclosed or otherwise terminated Loans and REO Properties on deposit in the related Mortgaged Property has not been liquidatedCertificate Account. The Servicer shall deliver to determination by the Master Servicer on or, if applicable, the related Servicer Remittance Date an Officer’s Certificate of Trustee or the Fiscal Agent, that it has made a Servicing Officer indicating the amount of Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance thatAdvance, if made, would constitute a Nonrecoverable Delinquency Advance, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed Delinquency Advance to be made by the Master Servicer, no less than two Business Days prior to the related Delinquency Advance Date) by the Master Servicer to the Trustee (or, if applicable, retained thereby) and the Depositor, 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 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 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, the Special Servicer, the Trustee or the Fiscal Agent, as the case may be, may, subject to its reasonable and good faith judgment determination that such Appraisal will demonstrate the nonrecoverability of the related 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 respect to a particular Delinquency Advance, and the Master Servicer shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a Nonrecoverable particular Delinquency Advance.
(d) The Master Servicer, the Trustee and the 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 Delinquency Advance made thereby (out of its own funds) for so long as such Delinquency Advance is outstanding (or, if any Delinquency Advance is required to be made in respect of a delinquent Monthly Payment on any Mortgage Loan prior to the end of the grace period for such Monthly Payment, for so long as such Delinquency Advance is outstanding following the end of such grace period), payable first, out of Penalty Charges received on the Mortgage Loan or REO Loan as to which such Delinquency Advance was made and, then, once such Delinquency Advance has been reimbursed, out of general collections on the Mortgage Loans and REO Properties pursuant to Section 3.05(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Delinquency Advances. The Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in the Collection Account from its own funds an amount equal to such Delinquency Advance, (ii) cause to be made an appropriate entry in the records of the Custodial Account that funds in such account being held for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to make such Delinquency Advance or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating the amount of such Delinquency Advance. Any such funds being held in the Custodial Account for future distribution and so used shall be replaced by the Servicer from its own funds by deposit in such Custodial Account to the extent required on or before any future Servicer Remittance Date in which such funds would be due. The Servicer shall be entitled to be reimbursed for all Delinquency Advances of its own funds made pursuant to this Section as provided in Section 3.8 hereof. Subject to and in accordance with the provisions of Article VII, in the event that the Servicer fails to remit a Delinquency Advance required to be made pursuant to this Section 3.19, the Master Servicer shall, unless it determines that such Delinquency Advance would constitute a Nonrecoverable Advance, itself make, or shall cause the successor Servicer or the Seller (as owner of the servicing rights with respect to the Mortgage Loans) to make, such Delinquency Advance on or before the Distribution Date following the Servicer Remittance Date on which such Delinquency Advance should have been made. The obligation to make Delinquency Advances with respect to any Mortgage Loan shall continue if such Mortgage Loan has been foreclosed or otherwise terminated and the related Mortgaged Property has not been liquidated. The Servicer shall deliver to the Master Servicer on the related Servicer Remittance Date an Officer’s Certificate of a Servicing Officer indicating the amount of any proposed Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance.
Appears in 1 contract
Delinquency Advances. The (a) On each Delinquency Advance Date, the Master Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in into the Collection Certificate Account from its own funds an amount equal to such the aggregate amount of Delinquency AdvanceAdvances (including with respect to the Oakbrook Center Mortgage Loan), if any, to be made in respect of the related Distribution Date, (ii) cause to be made an appropriate entry apply amounts held in the records of the Custodial Certificate Account that funds in such account being held for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to Certificateholders in subsequent months in discharge of any such obligation to make such Delinquency Advance Advances, or (iii) make Delinquency Advances in the form of any combination of amounts specified in clauses (i) and (ii) aggregating the total amount of Delinquency Advances to be made; provided, that if Late Collections (net of related Workout Fees) of the delinquent Monthly Payments for which Delinquency Advances are to be made for the related Distribution Date, are on deposit in the Certificate Account and available to make such Delinquency AdvanceAdvances, the Master Servicer shall utilize such Late Collections to make such Advances pursuant to clause (ii) above. Any such funds being amounts held in the Certificate Account or with respect to the Xxxxxxxx Fashion Center Mortgage Loan, the Xxxxxxxx Fashion Center Custodial Account for future distribution and so used to make Delinquency Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer from its own funds by deposit in such the Certificate Account or with respect to the Xxxxxxxx Fashion Center Mortgage 213 Loan, the Xxxxxxxx Fashion Center Custodial Account on or before the next succeeding Determination Date (to the extent required not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such Delinquency Advances were made). If, as of 3:00 p.m. (New York City time) on or before any future Master Servicer Remittance Date in which such funds would be due. The Servicer Date, the Trustee shall be entitled not have received any Delinquency Advance required to be reimbursed for all Delinquency Advances of its own funds made by the Master Servicer pursuant to this Section 4.03(a) (and the Master Servicer shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a Delinquency Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (000) 000-0000 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (000) 000-0000 (Attention: Master Servicing Manager) (or such alternative number provided by the Master Servicer to the Trustee in writing) as provided soon as possible, but in any event before 5:00 p.m. (New York City time) on such day. If after such notice the Trustee does not receive the full amount of such Delinquency Advances by 11:00 a.m. (New York City time) on the Business Day immediately following such Master Servicer Remittance Date, then the Trustee shall make the portion of such Delinquency Advances that was required to be, but was not, made by the Master Servicer pursuant to this Section 3.8 hereof4.03(a). Subject to and in accordance with If the provisions of Article VII, in the event that the Servicer Trustee fails to remit make a Delinquency Advance required to be made pursuant by it hereunder, the Fiscal Agent shall make such advance no later than 1:00 p.m. (New York City time) on the Business Day immediately following such Master Servicer Remittance Date. The making of such Advance by the Fiscal Agent shall cure the failure by the Trustee to this Section 3.19make such Advance. No Delinquency Advances shall be made by the Master Servicer, the Trustee or the Fiscal Agent with respect to either of the Xxxxxxxx Fashion Center Companion Loans.
(b) The aggregate amount of Delinquency Advances to be made by the Master Servicer shallin respect of the Mortgage Loans (including, unless it determines without limitation, Assumed Monthly Payments for Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Loans for any Distribution Date (including the Oakbrook Center Mortgage Loan and any REO Loan related to the Oakbrook Center Mortgage Loan) shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Workout Fees payable hereunder, that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the same month as such Delinquency Advance would constitute a Nonrecoverable Advance, itself make, Distribution Date and that were not paid by or shall cause on behalf of the successor Servicer related Mortgagors or otherwise collected as of the close of business on the later of the related Due Date or the Seller (as owner last day of the servicing rights related Collection Period. Notwithstanding the foregoing, (i) if an Appraisal Reduction Amount exists with respect to any Mortgage Loan (other than the Oakbrook Center Mortgage Loan) that is a Required Appraisal Loan or (ii) if the Master Servicer has been notified by the 2003-TOP9 Master Servicer than an Appraisal Reduction Amount exists with respect to the Oakbrook Center Mortgage LoansLoan and that the Oakbrook Center Mortgage Loan is a "Required Appraisal Loan" under the 2003-TOP9 Pooling and Servicing Agreement, then, in the event of subsequent delinquencies thereon, the interest portion of the Delinquency Advance in respect of such Required Appraisal Loan or Oakbrook Center Mortgage Loan, as the case may be, for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such Delinquency Advance) to make, by the product of (i) the amount of the interest portion of such Delinquency Advance on for such Required Appraisal Loan or before the Oakbrook Center Mortgage Loan, as applicable, for such Distribution Date following without regard to this sentence, multiplied by (ii) a fraction, expressed as a percentage, the 214 numerator of which is equal to the Stated Principal Balance of such Required Appraisal Loan or the Oakbrook Center Mortgage Loan, as applicable, immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Loan or the Oakbrook Center Mortgage Loan, as applicable, immediately prior to such Distribution Date. Pursuant to the 2003-TOP9 Pooling and Servicing Agreement, the 2003-TOP9 Master Servicer Remittance Date on which such Delinquency Advance should have been made. The obligation is obligated to make Delinquency Advances with respect to any the Oakbrook Center Mortgage Loan shall continue if such Mortgage Loan has been foreclosed or otherwise terminated and the related Mortgaged Property has not been liquidatedOakbrook Center Companion Loans. The Servicer shall deliver Notwithstanding anything herein to the contrary, the Master Servicer on shall not be required to make any Delinquency Advance with respect to the related Oakbrook Center Mortgage Loan unless and until the Master Servicer Remittance Date an Officer’s Certificate has received timely notice pursuant to the first Oakbrook Center Letter Agreement from either of a Servicing Officer indicating the amount 2003-TOP9 Master Servicer or the 2003-TOP9 Trustee of any proposed failure of the 2003-TOP9 Master Servicer to make an advance required under the 2003-TOP9 Pooling and Servicing Agreement by 3:00 p.m. (New York City time) one Business Day prior to the Delinquency Advance thatDate. Upon receipt of notice that the 2003-TOP9 Master Servicer has failed to make a Delinquency Advance with respect to the Oakbrook Center Mortgage Loan, the Master Servicer shall make such Delinquency Advance with respect to the Oakbrook Center Mortgage Loan unless the Master Servicer determines that such Delinquency Advance, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Delinquency Advance.
(c) Notwithstanding anything herein to the contrary, no Delinquency Advance shall be required to be made hereunder if such Delinquency Advance would, if made, constitute a Nonrecoverable Delinquency Advance. In addition, Nonrecoverable Delinquency Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Loans and REO Properties on deposit in the Certificate Account. The determination by the Master Servicer or, if applicable, the Trustee, that it has made a Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance, if made, would constitute a Nonrecoverable Delinquency Advance, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed Delinquency Advance to be made by the Master Servicer, no less than two Business Days prior to the related Delinquency Advance Date) by the Master Servicer to the Trustee (or, if applicable, retained thereby) and the Depositor, 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 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 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, the Special Servicer, the Trustee or the Fiscal Agent, as the case may be, may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related 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 respect to a particular Delinquency Advance, and the Master Servicer shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a particular Delinquency Advance. 215
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Delinquency Advances. The (a) On each Delinquency Advance Date, the Master Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in into the Collection Certificate Account from its own funds an amount equal to such the aggregate amount of Delinquency AdvanceAdvances, if any, to be made in respect of the related Distribution Date, (ii) cause to be made an appropriate entry apply amounts held in the records of the Custodial Certificate Account that funds in such account being held for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to Certificateholders in subsequent months in discharge of any such obligation to make such Delinquency Advance Advances, or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating the total amount of Delinquency Advances to be made; provided that, if Late Collections (net of related 153 Workout Fees) of the delinquent Monthly Payments for which Delinquency Advances are to be made for the related Distribution Date, are on deposit in the Certificate Account and available to make such Delinquency AdvanceAdvances, the Master Servicer shall utilize such Late Collections to make such Advances pursuant to clause (ii) above. Any such funds being amounts held in the Custodial Certificate Account for future distribution and so used to make Delinquency Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer from its own funds by deposit in such Custodial the Certificate Account on or before the next succeeding Determination Date (to the extent required not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such Delinquency Advances were made). If, as of 3:00 p.m., New York City time, on or before any future Master Servicer Remittance Date in which such funds would be due. The Servicer Date, the Trustee shall be entitled not have received any Delinquency Advance required to be reimbursed for all Delinquency Advances of its own funds made by the Master Servicer pursuant to this Section 4.03(a) (and the Master Servicer shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a Delinquency Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (000) 000-0000 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (000) 000-0000 (Attention: Master Servicing Manager) (or such alternative number provided by the Master Servicer to the Trustee in writing) as provided soon as possible, but in any event before 5:00 p.m., New York City time, on such day. If after such notice the Trustee does not receive the full amount of such Delinquency Advances by 11:00 a.m., New York City time, on the Business Day immediately following such Master Servicer Remittance Date, then the Trustee shall make the portion of such Delinquency Advances that was required to be, but was not, made by the Master Servicer pursuant to this Section 3.8 hereof4.03(a). Subject to and in accordance with If the provisions of Article VII, in the event that the Servicer Trustee fails to remit make a Delinquency Advance required to be made pursuant by it hereunder, the Fiscal Agent shall make such advance no later than 1:00 p.m. New York City time on the Business Day immediately following such Master Servicer Remittance Date. The making of such Advance by the Fiscal Agent shall cure the failure by the Trustee to this Section 3.19, make such Advance.
(b) The aggregate amount of Delinquency Advances to be made by the Master Servicer shallin respect of the Mortgage Loans (including, unless it determines without limitation, Assumed Monthly Payments for Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Loans for any Distribution Date shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Workout Fees payable hereunder, that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the same month as such Delinquency Advance would constitute a Nonrecoverable Advance, itself make, Distribution Date and that were not paid by or shall cause on behalf of the successor Servicer related Mortgagors or otherwise collected as of the close of business on the later of the related Due Date or the Seller (as owner last day of the servicing rights with respect to related Collection Period. Notwithstanding the Mortgage Loans) to makeforegoing, such Delinquency Advance on or before the Distribution Date following the Servicer Remittance Date on which such Delinquency Advance should have been made. The obligation to make Delinquency Advances if an Appraisal Reduction Amount exists with respect to any Mortgage Loan that is a Required Appraisal Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the Delinquency Advance in respect of such Required Appraisal Loan for the related Distribution Date shall continue be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such Delinquency Advance) by the product of (i) the amount of the interest portion of such Delinquency Advance for such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no Delinquency Advance shall be required to be made hereunder if such Delinquency Advance would, if made, constitute a Nonrecoverable Delinquency Advance. In addition, Nonrecoverable Delinquency Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Loan has been foreclosed or otherwise terminated Loans and REO Properties on deposit in the related Mortgaged Property has not been liquidatedCertificate Account. The Servicer shall deliver to determination by the Master Servicer on or, if applicable, the related Servicer Remittance Date an Officer’s Certificate of Trustee or Fiscal Agent, that it has made a Servicing Officer indicating the amount of Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance thatAdvance, if made, would constitute a Nonrecoverable Delinquency Advance, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed Delinquency Advance to be made by the Master Servicer, no less than two Business Days prior to the related Delinquency Advance Date) by the Master Servicer to the Trustee (or, if applicable, retained thereby) and the Depositor, 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 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 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, the Special Servicer, the Trustee or the Fiscal Agent, as the case may be, may, subject to its reasonable and good faith judgment determination that such Appraisal will demonstrate the nonrecoverability of the related 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 respect to a particular Delinquency Advance, and the Master Servicer shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a Nonrecoverable particular Delinquency Advance.
(d) The Master Servicer, the Trustee and the 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 Delinquency Advance made thereby (out of its own funds) for so long as such Delinquency Advance is outstanding (or, if any Delinquency Advance is required to be made in respect of a Monthly Payment on any Mortgage Loan prior to its Due Date or the end of the grace period for such Monthly Payment, for so long as such Delinquency Advance is outstanding following the later of (i) such Due Date and (ii) the end of such grace period), payable first, out of Penalty Charges received on the Mortgage Loan or REO Loan as to which such Delinquency Advance was made and, then, once such Delinquency Advance has been reimbursed, out of general collections on the Mortgage Loans and REO Properties pursuant to Section 3.05(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Delinquency Advances. The (a) On each Delinquency Advance Date, the Master Servicer shall determine on or before each Determination Date whether it is required to make a Delinquency Advance. The Servicer shall advance funds in the amount of any Scheduled Payment that was due during the related Collection Period and not received by the Servicer as of the related Determination Date; provided that in no event shall the Servicer be required to make any such Delinquency Advance that, if made, would in the good faith judgment of the Servicer be a Nonrecoverable Advance. With respect to any Mortgage Loan, if a Delinquency Advance is required to be made hereunder, the Servicer shall on or before the Servicer Remittance Date either (i) deposit in into the Collection Account from its own funds an amount equal to such the aggregate amount of Delinquency AdvanceAdvances, if any, to be made in respect of the related Distribution Date, (ii) cause to be made an appropriate entry apply amounts held in the records of the Custodial Collection Account that funds in such account being held for future distribution or withdrawal have been, as permitted by this Section 3.19, used by the Servicer to Certificateholders in subsequent months in discharge of any such obligation to make such Delinquency Advance Advances, or (iii) make Delinquency Advances in the form of any combination of clauses (i) and (ii) aggregating the total amount of Delinquency Advances to be made; provided that, if Late Collections (net of related Workout Fees) of the delinquent Monthly Payments for which Delinquency Advances are to be made for the related Distribution Date, are on deposit in the Collection Account and available to make such Delinquency AdvanceAdvances, the Master Servicer shall utilize such Late Collections to make such Advances pursuant to clause (ii) above. Any such funds being amounts held in the Custodial Collection Account for future distribution and so used to make Delinquency Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer from its own funds by deposit in such Custodial the Collection Account on or before the next succeeding Determination Date (to the extent required not previously 148 replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such Delinquency Advances were made). If, as of 3:00 p.m., New York City time, on or before any future Master Servicer Remittance Date in which such funds would be due. The Servicer Date, the Trustee shall be entitled not have received any Delinquency Advance required to be reimbursed for all Delinquency Advances of its own funds made by the Master Servicer pursuant to this Section 4.03(a) (and the Master Servicer shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a Delinquency Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (000) 000-0000 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (000) 000-0000 (Attention: Master Servicing Manager) (or such alternative number provided by the Master Servicer to the Trustee in writing) as provided soon as possible, but in any event before 5:00 p.m., New York City time, on such day. If after such notice the Trustee does not receive the full amount of such Delinquency Advances by 11:00 a.m., New York City time, on the Business Day immediately following such Master Servicer Remittance Date, then the Trustee shall make the portion of such Delinquency Advances that was required to be, but was not, made by the Master Servicer pursuant to this Section 3.8 hereof4.03(a). Subject to and in accordance with If the provisions of Article VII, in the event that the Servicer Trustee fails to remit make a Delinquency Advance required to be made pursuant by it hereunder, the Fiscal Agent shall make such advance no later than 1:00 p.m. New York City time on the Business Day immediately following such Master Servicer Remittance Date. The making of such Advance by the Fiscal Agent shall cure the failure by the Trustee to this Section 3.19, make such Advance.
(b) The aggregate amount of Delinquency Advances to be made by the Master Servicer shall, unless it determines that such Delinquency Advance would constitute a Nonrecoverable Advance, itself make, or shall cause the successor Servicer or the Seller (as owner in respect of the servicing rights Mortgage Loans and any MacArthur Companion Loan (including, without limitation, Assumed Monthly Payments for Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Loans for any Distribution Date shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Workout Fees payable with respect to such Mortgage Loan or MacArthur Companion Loan hereunder, that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the same month as such Distribution Date and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the later of the related Due Date or the last day of the related Collection Period (it being understood and agreed that none of the Master Servicer, the Trustee or the Fiscal Agent shall in any event be obligated hereunder to make a Delinquency Advance with respect to (i) any Companion Loan (other than a MacArthur Companion Loan) or (ii) after purchase of any Mortgage Loans) Loan pursuant to makethe Intercreditor Agreement, such Delinquency Advance on or before Mortgage Loan). Notwithstanding the Distribution Date following the Servicer Remittance Date on which such Delinquency Advance should have been made. The obligation to make Delinquency Advances foregoing, (A) if an Appraisal Reduction Amount exists with respect to any Mortgage Loan that is a Required Appraisal Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the Delinquency Advance in respect of such Required Appraisal Loan for the related Distribution Date shall continue be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such Delinquency Advance) by the product of (i) the amount of the interest portion of such Delinquency Advance for such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to (x) in the case of any Mortgage Loan, the Appraisal Reduction Amount and (y) in the case of any Loan Group, the excess, if any, of the Appraisal Reduction Amount, over the Stated Principal Balance of the related Companion Loan and the denominator of which is equal to the Stated Principal Balance of the Mortgage Loan and any related Companion Loans for such Required Appraisal Loan immediately prior to such Distribution Date or (B) if an Appraisal Reduction Amount exists with respect to the Companion Loans (taken together) that are part of the MacArthur Loan Group after it has become a Required Appraisal Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the Delinquency Advance in respect of related Companion Loans (taken together) for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such Delinquency Advance) by the product of (i) the amount of the interest portion of such Delinquency Advance for such related Companion Loans (taken together) for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Appraisal Reduction Amount and the denominator of which is equal to the Stated Principal Balance of such Companion Loans (taken together) immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no Delinquency Advance shall be required to be made hereunder if such Delinquency Advance would, if made, constitute a Nonrecoverable Delinquency Advance. In addition, Nonrecoverable Delinquency Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Loan has been foreclosed or otherwise terminated Loans and REO Properties on deposit in the related Mortgaged Property has not been liquidatedCollection Account. The Servicer shall deliver to determination by the Master Servicer on or, if applicable, the related Servicer Remittance Date an Officer’s Certificate of Trustee or the Fiscal Agent, that it has made a Servicing Officer indicating the amount of Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance thatAdvance, if made, would constitute a Nonrecoverable Delinquency Advance, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed Delinquency Advance to be made by the Master Servicer, no less than two Business Days prior to the related Delinquency Advance Date) by the Master Servicer to the Trustee (or, if applicable, retained thereby) and the Depositor, setting forth the basis for such determination, together with (if such determination is prior to the liquidation of the related Mortgage Loan, Loan Group or REO Property) a copy of an Appraisal of the related Mortgaged 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 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, the Special Servicer, the Trustee or the Fiscal Agent, as the case may be, may, subject to its reasonable and good faith judgment determination that such Appraisal will demonstrate the nonrecoverability of the related 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 respect to a particular Delinquency Advance, and the Master Servicer shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a particular Delinquency Advance.
(d) The Master Servicer, the Trustee and the 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 Delinquency Advance made thereby (out of its own funds) for so long as such Delinquency Advance is outstanding (or, if any Delinquency Advance is required to be made in respect of a delinquent Monthly Payment on any Mortgage Loan or any MacArthur Companion Loan prior to the end of the grace period for such Monthly Payment, for so long as such Delinquency Advance is outstanding following the end of such grace period), payable first, out 150
(a) other than any Delinquency Advance made on any MacArthur Companion Loan.
(e) Notwithstanding the above, none of the Master Servicer, Trustee or Fiscal Agent will be required to make any Delinquency Advances on any Companion Loan except for a MacArthur Companion Loan. Further, in making a determination regarding whether any Delinquency Advance on a MacArthur Companion Loan is a Nonrecoverable Delinquency Advance, the party making such determination shall make such determination based solely upon the ultimate recovery of amounts related to such Companion Loan.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
